Search Results Page

Search Results

1 - 10 of 10 (0.01 seconds)
Annamalai Chettiar vs Palamalai Pillai And Ors. on 26 October, 1917 cites

Mina Kumari Bibi vs Raja Bijoy Singh Dudhuria on 11 December, 1916

16. The decision of the question which is not free from difficulty is in my opinion partly concluded by the observation of their Lordships of the Privy Council in Mina Kumari Bibi v. Bijoy Singh Dudhuria I.L.R. 44 C. 662 : 32 M.L.J. 425 Though Section 276 of the old Code did not contain any provision corresponding to the explanation, the effect of the ruling in Sorabji Edulji Warden v. Govind Ramji F.N. Wadia and Anr. (1891) I.L.R. 15 B. 91 was to read the section in the same way as it would have read if the explanations were there and it is difficult to explain away the clear remark of their Lordships (who assume for the purposes of the argument that the decision in I.L.R. 16 Bom. 81 is correct) as having reference only to the wording of the old Code. In that case a decree-holder held two decrees against the same person and attached certain properties in execution of one of his decrees and would have been entitled to rateable distribution if the attachment had resulted in a sale. Pending attachment the judgment-debtor sold the property. The attachment subsequently ceased to be operative and the decree-holder subsequently attached the property and brought it to sale. The purchaser sought to recover the property from the alienees from the judgment-debtor. A decree was passed in his favour by the High Court but it was reversed on appeal by the Privy Council on the ground that the sale in execution being under an attachment subsequent to the private alienation was not protected by Section 276. Dealing with the argument that Section 276 rendered the alienation void as against the subsequent attachment their Lordships observe: "That section provides that when an attachment has been made as there described any private alienation of the property attached during the continuance of the attachment shall be void against all claims enforceable Under the attachment. Ex hypothesi the alienation to the plaintiff was not during the continuance of the attachment in execution case No. 16 of 1907 or in other words the attachment under which the execution sale to the decree-holders was made. Therefore it cannot be avoided by the attachment."
Bombay High Court Cites 2 - Cited by 57 - Full Document

Vibudapriya Thirthaswami And Others vs Esuf Sahib And Ors. on 5 September, 1910

In Vibudhapriya Tirthaswami v. Yusuf Sahib (1905) I.L.R. 28 M. 381 a similar view was taken. It was held by Sir Arnold White, C. J., and Davies, J., that the rights of decree-holders who had applied for execution of their decrees depended upon Section 295 and that unless the events upon the happening of which Section 295 would have come into operation, namely, the realization of assets by the Court, happened, they had no claims enforceable under the attachment so as to attract the provisions of Section 276 to the alienations questioned.
Madras High Court Cites 4 - Cited by 8 - Full Document

Jetha Bhima And Co. vs Lady Janbai on 20 February, 1912

13. It was in this state of the authorities that the legislature enacted Section 64 of the present Code (Act V of 1908). An explanation was added to Section 64 to the effect that for the purposes of that section claims enforceable under the attachment included claims for rateable distribution. As pointed out in Jeiha Bhima and Co. v. Lady Janbai (1912) I.L.R. 37 Bom. 138 the effect of the explanation is to give legislative approval to the extended meaning given to the words " claims enforceable under the attachment" in I.L.R. 16 Bom. page 91. In this view a reference to the authorities as they stood prior to the passing of the new Act would be relevant. It will be useful to consider in this connection the other relevant provisions of the Code. In Section 73 which corresponds to Section 295 of the Act of 1882 the words used are " where assets are held by a Court and more, persons than one, have before the receipt of assets, made application" instead of, "whenever assets are realized by sale or otherwise in execution of a decree, and more persons than one have, prior to the realization, applied to the Court" in Section 295 of the old Code, In Order 21, Rule 55, which corresponds to Section 275 a clause is added providing that the attachment shall be deemed to be withdrawn and for notification of such withdrawal by proclamation at the place where the property is situate. The only amount to be paid in order to get the attachments withdrawn is the amount decreed with costs and all charges and expenses resulting from the attachment and Clauses (b) and (c) only refer to satisfaction and reversal of the decree in execution of which the property is attached. Rule 57 which is new provides for the determination of the attachment if the execution application is dismissed owing to the decree-holder's default. Order 21, Rule 69, which corresponds to Section 291 of the Act of 1882 provides that the sale shall be stopped if before the lot is knocked down the debt and costs including the costs of sale are tendered to the officer conducting the sale or proof given that the amount has been paid into Court. Order 21, Rule 89, corresponding to Section 310-A, requires that only the amount specified in the proclamation of sale less any payment subsequently made should be paid into Court with 5 per cent. of the purchase money. Form 8 of Appendix E to the Code specifies the sum due and authorises attachment and directs the officer to hold the same until further order of the Court unless the amount specified is paid and similarly the prohibitory order specifies the amount for which the decree has been passed. Form 24 which relates to attachment of immoveable property under Order 21, Rule 54, also gives the amount of the decree in execution of which the attachment is made. It is clear from the rules and forms above referred to that the attachment ceases to have any force as soon as the decree in execution of which the property has bean attached is satisfied of the execution application is dismissed owing to the decree-holder's default. It is significant that the last clause of Order 21, Rule 55 and the whole of Rule 57 are new and that no reference is made to the claims of persons who would be entitled to reteable distribution. In contrast with this Rule 90 which relates to the setting aside of sales for irregularity which corresponds to Section 311 of the old Code contains the words " entitled to share in a rateable distribution of assets " not found in Section 311.
Bombay High Court Cites 5 - Cited by 5 - Full Document

Kunhi Moosa vs Akath Makki And Ors. on 14 December, 1899

In Kunhi Moosa v. Makki (1899) I.L.R. 28 M. 478 : 10 M.L.J. 98 a kanom was executed pending an attachment and the decree in execution of which the property demised under the kanom was attached was paid off. It was held that the kanom was valid as against decree-holders who had applied for execution and who would in the ordinary course have been entitled to rateable distribution if the property had been sold. Subramania Iyer, J., was of opinion that the attachment ceased to be operative in so far as the attaching creditor was concerned on the decree amount due to him being paid off and that " on principle it follows that with reference to the other judgment-creditors also, who, had the attachment resulted in the realization of assets, would have been entitled to a rateable distribution, the attachment became inoperative".
Madras High Court Cites 0 - Cited by 5 - Full Document
1