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Judgment
Ganapatia Pillai, J.—Two items of properties were attached on 2-2-1947 in E. P. No. 36 of 1947, on the file of the learned District Munsif
of Devakottai in execution of a decree obtained by the respondent to this appeal in the City Civil Court, Madras, against a judgment-debtor
against whom the appellant herein also had obtained a decree from the Sub-Court, Devakottai. Though this E. P. was dismissed on 11-2-1949 the
attachment was ordered to continue for two months.
Subsequent to the attachment effected at the instance of the respondent, the appellant put his decree in execution and brought to sale one of the
two properties attached in E. P. No. 36 of 1947, relying on a security bond executed by the judgment-debtor when the attachment in E. P. No. 36
of 1947 was in force. This Property was sold by the District Munsif of Devakottai and purchased by the decree-holder himself (the appellant
herein).
The learned District Munsif, on objection being raised by the present appellant directed - in a subsequent E. P. by the respondent - execution to
proceed against item 2 alone in the attachment list on the ground that item 1 had been already sold in favour of the Devakottai Sub-Court decree-
holder, the present appellant. Against this order of the learned District Munsif of Devakottai an appeal was preferred to the Sub-Court,
Devakottai, which took the view that the execution sale in favour of the present appellant was hit by Sec.64 C. P. C., and consequently the sale
was void and the respondent, he held, was entitled to ignore that execution sale and bring item 1 also to sale in execution of his decree.
The only other fact to be noted to appreciate the contentions of the parties in this second appeal is that during the pendency of the execution
petition preferred by the appellant, the judgment-debtor had executed a security bond giving a charge right over the property now in question for
the satisfaction of the Sub-Court decree in consideration of the present appellant agreeing to receive the decree amount in instalments.
The argument of the learned Counsel for the respondent is that Sec. 64, C. P. C. would apply to invalidate the sale held in execution the Sub-
Court decree because that sale according to him was really founded on the security bond executed by the common judgment-debtor. This
argument proceeds on the fallacy that the sale was in satisfaction of a liability created by the security bond. The security bond no doubt enabled the
decree-holder, the present appellant, to bring the property to sale in the execution proceeding without attachment.
Beyond that it did not enlarge his rights nor did it enable him to proceed against properties which he could not have proceeded against otherwise in
execution of his decree. It is the Sub-Court decree obtained by him which enabled him to proceed against the properties of the judgment-debtor of
which the property now in dispute is one. It cannot therefore be said that he acquired the right to proceed against the property sold in satisfaction
of his decree under the security bond.
The learned Counsel for the respondent did not rely upon the three cases followed by the lower appellate court but cited the decision in S. A. No.
328 of 1951, 1954 Mad WN (SN) 53 (A) and Maung Polu v. Bank of Chettinad, AIR 1934 Rang 313 (B) in support of his contention. In both
these cases subsequent to the attachment of the property by a Civil Court, a private mortgage"" or alienation was made by the judgment-debtor on
the basis of which either an award had been obtained under the Co-operative Societies Act, or a decree through court.
Both, these decisions held that the sale held in execution of the subsequent decree was really founded on the alienation which was created
disregarding the provisions of Sec. 64, C. P. C. On that ground it was ruled in both these cases that the execution sale based upon such a
mortgage was void against the decree-holder who had already attached the property. These two decisions do not therefore apply to the facts of
this case.
It is clear that Sec. 64 C. P. C. cannot be availed of by the respondent to invalidate the sale which was held in execution of the decree obtained by
the appellant in this case. The order of the lower appellate court is therefore wrong. This civil miscellaneous second appeal is allowed and the
order of the learned District Munsif is restored with costs throughout. Leave granted.