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Judgment
In this case the 2nd defendant attached the suit property in execution of a decree and brought it to sale. The sale was set aside under Order XXI, Rule 89 of the Civil Procedure Code. The result of setting aside the sale was that in accordance with a recent decision of the Privy Council in Minn Kumari Bibi v. Bijoy Singh Dudhuria 40 Ind. Cas. 242: 1 P.L.W. 425 : 21 M.L.T. 344 : 19 Bom. L.R. 424 : (1917) M.W.N. 473 : 44 I.A. 72. and a recent Full Bench decision which followed it. No assets had been realised under that attachment against which other creditors could claim rateable distribution u/s 64 of the Code.
The 2nd defendant''s claim against the suit property was satisfied by the deposit pursuant to Rule 89, but the decree was not fully satisfied and a particular sum has subsequently accrued as interest.
Assuming that the 2nd defendant, the attaching creditor, had the right to bring the property to sale a second time insatisfaction of that balance, that has not been done; if it were done, that aale could again be set aside on payment of the balance and other charges provided for in the rule. No assets have been realised under this attachment against which the 2nd defendant is entitled to proceed in respect of another decree which he has obtained. If the 2nd defendant wishes to bring this property to sale, he must attach under that other decree and bring it to sale. But then he would be met by the objection that the sale to the plaintiff was prior to that attachment. The circumstances very much resemble the circumstances of the Privy Council case. In both the cases, the attaching decree-holder was seeking to make use of the attachment for the satisfaction of some other debt when there had been no sale and no realisation of the assets under the attachment. On the other band there has been an alienation to a third party, which is good against any subsequent attachment by the 2nd defendant. In the result we allow the appeal, reverse the decrees of the lower Courts and remand the case to the District Munsif for disposal on the first issue Costs will abide.