Judgement Appeal from a judgment and decree of the High Court (March 26, 1912) reversing a judgment and decree of the Subordinate Judge of Murshidabad (March 29, 1909). The suit was instituted by the appellant against the respondent and one Chhatrapat Singh for a declaration that certain property-bought by the respondent at a sale in execution of a decree belonged to her at the date of the sale ; she also claimed possession and an injunction. The appellant relied upon a purchase from the judgment debtor on July 15, 1907. The property had been attached on July 16, 1907, in execution of a decree obtained in 1901 against Chhatrapat Singh, the respondent being the decree-holder and, by leave of the Court, the auction purchaser. The property had been attached by the same decree-holder in 1902 under a decree obtained against Chhatrapat Singh in 1896. The facts as to the attachments appear fully from the judgment of their Lordships. Chhatrapat Singh did not appear in the proceedings. The respondent by his written statement pleaded (inter alia) that the alleged purchase by the appellant was fraudulent and collusive, and relied further on the attachment in 1902. Issues were framed of which the following only were material to the appeal (3.) Is the alleged transfer made to the plaintiff for con sideration and bona fide and a valid transaction, and does it in any way affect the defendants title ? (4.) Has the transfer been made during the subsistence of an attachment and for the purpose of defrauding creditors ? The Subordinate Judge, upon a consideration of the evidence, found that there was good consideration for the transfer and that a fair value had been given for the property. He further held that it had not been proved that the properties were under an earlier attachment. He accordingly made a decree in the appellants favour. Upon appeal the High Court reversed the decision. The learned judges found that the transfers to the appellant were antedated and that the whole transaction was a fraud. In view of these findings they found it unnecessary to consider whether the properties were under attachment at the date of the sale to the appellant. 1916. Nov. 10, 13, 14, 16. Upon appeal the High Court reversed the decision. The learned judges found that the transfers to the appellant were antedated and that the whole transaction was a fraud. In view of these findings they found it unnecessary to consider whether the properties were under attachment at the date of the sale to the appellant. 1916. Nov. 10, 13, 14, 16. The arguments upon the appeal were addressed chiefly to the facts ; only those upon the right of the respondents in law under the attachment of 1902 are reported. Upjohn, K.C., and Sir W. Garth, for the appellant. De Gruyther, K.C., and Dube, for the respondent. The attachment of 1902 was subsisting at the date of the transfers to the appellant. Under s. 276 of the Code of Civil Procedure, 1882, the transfers to the appellant were void against all claims enforceable under that attachment. The respondents claim under the decree of 1896 was enforceable against the proceeds of sale under s. 295 of the Code ; the transfers were therefore void under s. 276. This is the true interpretation of ss. 276 and 295; it is now embodied in s. 64 of the Code of Civil Procedure, 1908 Sorabji v. Govind Ramji. (( 1891) I. L. R. 16 Bomb. 91, 95.) It was proved that the respondent had applied for a rateable distribution of the proceeds of the sale under s. 295. It is true that reliance was not placed upon this argument before the High Court; it was, however, raised in the grounds of appeal to that Court and by the respondents case in the present appeal; it is therefore open to the respondent Maharani Beni Koeri v. Dudh Nath Roy. (( 1899) L. R. 26 Ind. Ap. 216, 221.) Upjohn, K.C., in reply. The auction sale at which the respondent purchased was under the execution proceedings of 1907, not under those of 1902, and the attachment in 1907 was admittedly after the transfers to the appellant. The attachment referred to in s. 276 is the attachment in the execution proceedings in which it is ordered. Sect. 295 has no application, since the attachment in 1907 was not operative. In any view the execution and attachment of 1902 had been abandoned before 1907. Dec. 11. The judgment of their Lordships was delivered by SIR LAWRENCE JENKINS. The attachment referred to in s. 276 is the attachment in the execution proceedings in which it is ordered. Sect. 295 has no application, since the attachment in 1907 was not operative. In any view the execution and attachment of 1902 had been abandoned before 1907. Dec. 11. The judgment of their Lordships was delivered by SIR LAWRENCE JENKINS. This is a suit for the possession of immovable property brought by a purchaser under a private alienation against a purchaser at an execution sale, who was also the decree-holder, and against the judgment debtor. The suit was decided in the plaintiffs favour in the Court of the Subordinate Judge at Berhampur, but on appeal it was dismissed with costs by the High Court of Calcutta. From the High Courts decree the present appeal has been preferred to His Majesty in Council. The judgment debtor is Chhatrapat Singh, who is not inexperienced in litigation. Two decrees were passed against him in the High Court of Calcutta on its original side, one on August 24, 1896, in suit 449 of 1896, the other on January 3, 1901, in suit No. 302 of 1900. The defendant, Raja Bijoy Singh Dudhuria, the purchaser at the execution sale, was a transferee of both decrees, and so became the decree-holder under each. It will be convenient to trace briefly the history of these decrees, both of which were sent for execution to the Court of the District Judge of Murshidabad. On June 13, 1902, an application was made at Murshidabad by the decree-holder for execution of the decree of 1896, and the proceedings became execution case No. 8 of 1902. On July 12, 1902, an order of attachment was made under s. 274 of the Code of Civil Procedure, 1882, prohibiting the judgment debtor from alienating the property there specified until any other order should be passed by that Court. The proceedings were protracted by adverse claims, but ultimately on March 29, 1905, the following order was recorded " Nothing further can be done in this case at present. The application for execution is accordingly dismissed with the consent of the decree-holder. Certify result to the High Court, original side." Though this does not appear on the record, it may be assumed that the Murshidabad Court certified the result to the High Court, in accordance with the provisions of s. 223 of the Code. The application for execution is accordingly dismissed with the consent of the decree-holder. Certify result to the High Court, original side." Though this does not appear on the record, it may be assumed that the Murshidabad Court certified the result to the High Court, in accordance with the provisions of s. 223 of the Code. On July 26, 1907, another application, No. 19 of 1907, was made to the Murshidabad Court for execution of the decree of 1896, and here, too, it may be assumed that an order was made by the High Court for the transmission of the decree. The order made on the application was, " Now issue warrant of attachment. Returnable on August 16." On July 29, 1907, at the decree-holders instance, the issue of the warrant of attachment was stayed, and a direction given for the issue of notice to the judgment debtor to show cause on August 16 why the properties should not be advertised for sale. On August 16 the decree-holder applied for the issue of a sale proclamation, " the attachment being taken to have subsisted since the order passed on March 27, 1905, on his previous application for sale of the same properties.....Previous to that order there had been an order passed on March 20, 1905, directing that the sale of the [other] property now for sale here is postponed indefinitely. " Notwithstanding Chhatrapats opposition, the District Judge held that the application 19 of 1907 must be received as one in continuation of the former proceedings, that the properties were still under attachment, and that a sale proclamation might issue without the property again being attached. Though on the face of things it seemed no real concern of his, still Chhatrapat appealed, but the order was affirmed by the High Court. So much, then, for the proceedings under the decree of 1896. Under the other decree, that of 1901, an application for execution, No. 16 of 1907, was made by the decree-holder on July 16, 1907, in the Murshidabad Court. Notice was issued, and on July 29, 1907, an order was made for the issue of a warrant of attachment. On August 23, 1907, attachment was effected. Under the other decree, that of 1901, an application for execution, No. 16 of 1907, was made by the decree-holder on July 16, 1907, in the Murshidabad Court. Notice was issued, and on July 29, 1907, an order was made for the issue of a warrant of attachment. On August 23, 1907, attachment was effected. A claim was preferred by the present plaintiff, but the property was sold in execution, notwithstanding her opposition, the purchaser being the decree-holder, in whose favour an order had been made allowing the purchase-money to be set off against the decretal amount, which was considerably in excess of the price. The private alienation under which the plaintiff derives title was effected by two sale deeds expressed to be executed in her favour on July 15, 1907, by the judgment debtor. The question in this litigation is which of the two titles is to be preferred, the plaintiffs or the decree-holders. The plaintiff alleges that hers is the earlier, and that the judgment debtor had no right, title, or interest in the property in suit at the date of the attachment in execution case No. 16 of 1907, under which the decree-holder bought. The plaintiff also questions, with certain exceptions, the identity of the property in the two sales, but in the view their Lordships take this topic need not be pursued. The decree-holder denies the plaintiffs priority of title and con tends that the assurances to her were collusive and fictitious ; that the sale deeds, though purporting to be of a date prior to the attachment in execution case No. 16 of 1907, were in truth executed later ; and that in any case the private alienation to the plaintiff was during the continuance of an attachment and therefore void. First, then, as to the alienation in favour of the plaintiff being, as it is termed in the respondents case, collusive and fictitious. It is there alleged that " the judgment debtor, Chhatrapat Singh, was, and always remained, the real owner of the properties in dispute." Strictly this means that the transaction was benami and not that it was a fraudulent transfer within the meaning of s. 53 of the Transfer of Property Act. The difference is distinct, though it is often slurred. It is there alleged that " the judgment debtor, Chhatrapat Singh, was, and always remained, the real owner of the properties in dispute." Strictly this means that the transaction was benami and not that it was a fraudulent transfer within the meaning of s. 53 of the Transfer of Property Act. The difference is distinct, though it is often slurred. To the suggestion that the transaction was benami a complete answer is furnished by the admission that the judgment debtor owed the plaintiff the amount stated to be the consideration for the sale deeds and more. And even if the case for the decree-holder be treated as raising the further plea of a fraudulent transfer, this same admission operates strongly in the plaintiffs favour. It may be that the judgment debtor preferred the plaintiff, with whom he was connected by family ties, and that he did this of set purpose, yet this would not stamp the transaction as a fraudulent transfer. A debtor, for all that is contained in s. 53 of the Transfer of Property Act, may pay his debts in any order he pleases and prefer any creditor he chooses. And whatever may be suspected, and however slender the confidence that Chhatrapat may inspire, there is no evidence on which any fraudulent intention can be imputed to the plaintiff. Had it been made out that the sale deeds to the plaintiff were really executed after the attachment in execution case 16 of 1907, then there would have been justification for a finding of fraud ; though in that case the finding would have been unnecessary, for the plaintiffs title would have been defeated, apart from fraud, under the express terms of s. 276 of the Civil Procedure Code. But the contention that the sale deeds were antedated cannot be sustained. It is a general though not a conclusive presumption that a document was made on the day of the date it bears, so that for what it is worth the plaintiff starts with that in her favour ; but her case does not rest there, for such oral evidence as there is on the point supports the presumption, and was not seriously challenged by cross-examination. It has been suggested that the plaintiff should have called other witnesses to the date of execution. But her advisers had no reason to apprehend that this contention would be advanced. It has been suggested that the plaintiff should have called other witnesses to the date of execution. But her advisers had no reason to apprehend that this contention would be advanced. It is not pleaded in the written statement, it is not raised in the issues, and the judgment of the first Court certainly does not suggest that it was given prominence even at the trial. There may be ground for suspicion, and Chhatrapats treatment of his creditors in the past may engender doubt, but the Courts decision must rest, not upon suspicion, but upon legal grounds established by legal testimony. Such as it is the legal proof here is all on the plaintiffs side, while if indirect signs are sought the keenness which marked the contest as to the continuation of the execution proceedings No. 8 of 1902 is hardly intelligible unless it be assumed that both parties realized the importance of the dates, and the dates could only have possessed importance if the sale deeds had been already executed. But then it is urged for the decree-holder that the sales to the plaintiff, even if executed on the date the kobalas bear, are, nevertheless, void under s. 276 of the Civil Procedure Code. 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 enforce able 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-holder was made. Therefore it cannot be avoided by that attachment. But the decree-holder argues that it was made during the continuance of the attachment in execution case No. 8 of 1902, and in support of this reliance is placed on the order of the District Judge of August 16, 1907, which was affirmed on appeal by the High Court. The plaintiff is not bound by those decisions, and their correctness has been forcibly questioned before their Lordships. But it is unnecessary and inadvisable to deal further with this point, and more especially as there is another and surer answer to the decree-holders plea. The plaintiff is not bound by those decisions, and their correctness has been forcibly questioned before their Lordships. But it is unnecessary and inadvisable to deal further with this point, and more especially as there is another and surer answer to the decree-holders plea. He relies on s. 295 of the Code of Civil Procedure as entitling him to the benefit of s. 276, and for this purpose he calls in aid his application for attachment in execution case No. 8 of 1902. To bring s. 295 into play certain conditions are necessary, and one of them is that there should be assets held by the Court. It has not been shown that there were such assets, and the indications in the record point the other way. But apart from this, s. 295 cannot help the decree-holder. Though the word " attachment" occurs three times in s. 276, the reference is to one, and only one, attachment; that one in this case is the attachment in execution case No. 16 of 1907. All that can be done is to employ that attachment for the purpose of impugning the private alienation, for it is on that alone that the decree-holders title to the property in suit at present rests. So that even if it be assumed, for the sake of argument, that the view which prevailed in Sorabji v. Govind Ramji (I. L. R. 16 Bomb. 91.) is correct, and that the conditions of s. 295 have been satisfied, it cannot advance the decree-holders case. It still is the attachment in execution case No. 16 of 1907 that is the only weapon of attack, and it is not made more effective by the earlier attachment in execution case No. 8 of 1902. All that earlier attachment can do in the circumstances of this case is to entitle the decree-holder to the benefit of the later attachment. He cannot claim to be in a better position than the decree-holder in execution case No. 16 of 1907, nor does it strengthen his position that it is the same person who is the decree-holder in both cases. To claim a higher right because the attachment in execution case No. 8 of 1902 is of an earlier date rests on an obvious confusion of thought. To claim a higher right because the attachment in execution case No. 8 of 1902 is of an earlier date rests on an obvious confusion of thought. The result, then, is that the appeal must be allowed, the decree of the High Court set aside, and the decree of the Subordinate Judge, so far as it directs that the plaintiff do get khas possession of the properties in suit, restored with costs in both Courts, and any costs paid under the decree of the High Court must be refunded and the costs of this appeal paid by the decree-holder. And their Lordships will humbly advise His Majesty accordingly.