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23. The Patna High Court applied Mina Kumari Bibi v. Bijoy Singh Dudhuria (1916) 32 M.L.J. 425 : L.R. 44 I.A. 72 : I.L.R. 44 Cal. 662 (P.C.) and approved of Annamalai Chettiar v. Palamalai Pillai (1917) 33 M.L.J. 707 : I.L.R. 41 Mad. 265 (F.B.) in Radha Mohan v. Musammat Wahidan and the decision of the Nagpur High Court to the same effect was given in Kastur Chand v. Wazir Begum I.L.R. (1937) Nag. 291.

24. The learned Judges who have made this reference have indicated that in their opinion Section 64 is sufficiently widely worded to give Pedda Sambayya Chetty the benefit of Appu Chetty's attachment. They have read Section 64 as operating to protect all judgment-creditors who have applied for execution before any assets of the judgment-debtor are brought into Court, irrespective of the fact that the attachment which results in the sale has been effected after the private alienation. If it were the intention of the Legislature to embody in the Code this broad principle, the language used has not effected it and the Court can only have regard to the language used. I am unable, however, to accept the proposition that the Legislature had in mind what the learned Judges consider it had in mind. The principle which they say is expressed in Section 64 is a principle which runs contrary to the common law and contrary to the provisions of the Code of civil Procedure of 1859. Under Section 270 of that Code the creditor who attached first was given priority. He was entitled to be paid in full. Section 271 provided merely for the rateable distribution of the balance. It seems to me more probable that the Legislature has said what it intended to say. The learned Judges, while they have considered the decisions in Mina Kumari Bibi v. Bijoy Singh Dudhuria (1916) 32 M.L.J. 425 : L.R. 44 I.A. 72 : I.L.R. 44 Cal. 662 (P.C.) and Annamalai Chettiar v. Palamalai Pillai (1917) 33 M.L.J. 707 : I.L.R. 41 Mad. 265 (F.B.) have not examined the decisions of the other High Courts which have applied the judgment in the former case to the present Code and have approved of the judgments in the latter case. The learned Judges were impressed by the decision in Durga Churn Rai Chowdhury v. Monmohini Dasi (1888) I.L.R. 15 Cal. 771. In that case the Calcutta High Court accepted the view of the Allahabad High Court in Ganga Din v. Khushali (1885) I.L.R. 7 All. 702 and observed that to hold that claims under Section 295 of the Code of 1882 were claims enforceable by attachment against which assignments made under Section 276 were void, would perhaps be carrying out the intention that might have been in the mind of the Legislature when the old Code, which did not provide for a rateable distribution, was suddenly modified by the introduction of that perfectly new principle, but the sections of the Code relating to execution were not re-cast so as to be fully adapted to the new state of things, and it appeared to the learned Judges who decided Durga Churn Rai Chowdhury v. Monmohini Dasi (1888) I.L.R. 15 Cal. 771, that in this respect Section 276 had not been successfully framed with the object of protecting rateable distribution amongst claimants under Section 295. With the addition of the explanation to Section 64 of the present Code, the learned Judges who have referred the present question have indicated that in their opinion the section has been framed in such a way that all claimants for rateable distribution have been protected, notwithstanding that the proceedings leading to the sale of the judgment-debtor's property have been instituted after the private alienation. They say that otherwise the protection which the. Legislature intended to afford to claimants for rateable distribution would be meaningless. Their argument, however, overlooks the fact that were it not for the explanation the controversy which led to conflicting decisions would remain unsettled. With great respect I am unable to share the opinion expressed in the Order of Reference.

38. In adding the Explanation to Section 64, I feel that the Legislature has, instead of confining the benefit of the attachment to the attaching creditor only, extended it to such other creditors also whose claims were 'enforceable' under the attachment. The use of the word 'enforceable' in Section 64 is very significant. It means 'capable of being enforced' and has to be distinguished with the word 'enforced'. As soon as an application for execution is made by a person holding a decree for the payment of money against a judgment-debtor to the Court which had already attached the property of the same judgment-debtor, the person making the application for execution would be entitled to rateable distribution if the application was made before the receipt of assets and his claim or decree would be enforceable under the attachment although it would not be enforced until the assets were actually received in Court. But we are not considering any question of actual distribution of assets, for which their receipt is naturally a condition, but the effect of such an application under Section 64 of the Code of Civil Procedure. A claim for rateable distribution has now been included, by the explanation to Section 64 in the claims enforceable under an attachment. It would therefore follow that as soon as an application for execution is made by a person in circumstances which would entitle him to claim rateable distribution, his claim would fall within the category of claims enforceable under the attachment. He would then be entitled to claim the benefit of Section 64 and to treat the alienation of the property by his judgment-debtor as 'void' not only against the attaching creditor but also as against himself. In other words, if the alienation by his judgment-debtor was contrary to the attachment effected at the instance of the attaching creditor, it would be void as against his claim which has by virtue of the Explanation become enforceable under the attachment. For ascertaining the effect of Section 64, it appears to be unnecessary to consider whether the assets were actually realised, by the Court subsequently or not. This may be vital when the Court wishes to dispose of the various applications and distribute the assets but has, to my mind, no bearing on the validity or otherwise of the alienation made pending an attachment. But it has been contended that unless the attachment effected on the property results in a sale, the application for execution which would entitle a party to rateable distribution could not be brought within Section 73 of the Code of Civil Procedure and would not therefore entitle him to take advantage of the attachment effected at the instance of the attaching creditor. Section 73 provides how the assets are to be actually distributed and has thus to define persons who are entitled to share in the rateable distribution but it is beyond the province of that section to say as to what the effect of an attachment would be on an alienation not only in regard to the attaching creditor but also in regard to the claims of persons who are entitled to a share in the rateable distribution. For this purpose we will have to go to Section 64; but there is nothing in that section which makes the sale of property or even the receipt of assets as a condition precedent for either the validity of the attachment or for voidability of the alienation effected during its pendency. The explanation to Section 64 makes it clear that for the purpose of that section, there would be no difference between an attaching creditor and an applicant for rateable distribution. The claims of both have been declared now to be enforceable under the attachment. If that be so, where is the justification for adding a condition that the first attachment should necessarily have resulted in a sale failing which another decree-holder, who was not the attaching creditor, could not take advantage of the attachment effected before he made his application for execution and could not impugn the transfer of property made by the judgment-debtor during the subsistence of that attachment?

It would be impossible therefore to hold that there are claimants for rateable distribution of assets before any assets have been received.

54. The only reason which he gives for this conclusion is that Section 73 does not make it necessary for a decree-holder to make any formal application for a rateable share in the assets and an application for execution is all that is required. He therefore states that there may be cases where no formal application for rateable distribution may have been made. I concede that there, would be. But then follows the conclusion which has been noted above. With great deference to the learned Chief Justice I am not prepared to agree that this conclusion follows from the premises enunciated by him. The relief of rateable distribution need not have been asked for but has to be granted if an application for execution has been given by a decree-holder before the assets are received by the Court. The result of his being a claimant for rateable distribution would follow from the application for execution which he has made and not from the fact that the relief has been eventually granted to him or that the Court has been, on the receipt of assets, placed in a position to grant the relief to him. The distinction between a claimant and a recipient should not be lost sight of.

66. That the Legislature had an object in adding the Explanation in Section 64 is undeniable. Whether that object was to introduce a change, or remove a doubt, it is bootless to enquire. Whichever it was, it is manifest that it concerned claims to rateable distribution, a subject on which the Code of 1908 has made at least one important change. Under the old Code, such claims were linked up with execution, and were recognised only when made in respect of assets realized in execution. That link has been removed under the new Code, and the right is no longer dependent on the mode by which the assets reach the hands of the Court. In whichever way now, the assets are received, whether by execution or otherwise, it makes no difference. Look at the consequence, which necessarily follows from this change. Rateable distribution is entirely dissociated from attachment in execution. True, the claim to rateable distribution may arise, as it often does, even now, in respect of assets realized in execution. But the necessity which had existed for the assets being realized by the process-of execution has definitely ceased under the new Code. The claim, may now arise in respect of, assets brought into Court in either of two ways : (i) by attachment in execution, or (ii) by other means without any connection with execution. The right to rateable distribution, in Section 64, must comprehend both varieties, and there, can be no warrant for limiting it to only one of the two.