Mst. Maula Devi and Another vs Prayag Prasad and Others

S. Shamsul Hasan, J.—This application arises out of a dispute between two decree-holders arising out of two different suits against one Nagina Prasad. Both the parties appearing here i.e., the petitioner and the opposite party 1 instituted a suit and obtained decrees, the prior suit being that of the opposite party. In that suit they had obtained an attachment before judgment of the property which is involved in this dispute. It is not disputed that the decree of the petitioners has already been executed, sale effected and confirmed in regard to the property in relation to which the opposite party is now executing his decree. The objection of the petitioners, relying on, Ganga Ram Gulraj Ram Vs. Muktiram Marwari and Others, and Order 38, Rule 10 of the Civil P. C. is that the decree of the opposite party can no longer be executed against the property in spite of the attachment. It will be relevant to quote the paragraph of the aforesaid decision and the relevant provisions of the Civil P. C., which are as follows:

Ganga Ram Gulraj Ram Vs. Muktiram Marwari and Others, --

"When a property under attachment has been sold in execution of another decree the first attachment falls to the ground and proceedings taken thereunder falls along with it, and the sale and the consequent satisfaction of the decree is illegal and must be ignored."

Order XXXVIII, Rule 10:

"Attachment before judgment not to affect rights of strangers nor bar decree-holder from applying for sale --Attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under the attachment in execution of such decree."

In view of the aforesaid state of affairs, I have no hesitation in allowing the application and holding that the opposite party cannot execute the decree in relation to the property already sold and the sale confirmed. It will be open to the opposite party, however to proceed against any other property of the judgment debtor in accordance with law. Accordingly the impugned judgment is set aside, but without costs.