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1950 DIGILAW 370 (MAD)

Kattikoolathil Mammu. v. Vinayaka Kamath.

1950-12-01

GOVINDA MENON

body1950
Judgment.- In Vootla Viriah v. Tadepalli Subba Rao1 following the observations of Spencer and Venkatasubba Rao, JJ., in Dhanammal v. Veeraraghava Naidu2 Horwill, J. and myself have laid down that the word “interest” in Order 21, rule 89 has got a very wide import and should be construed very liberally. Any inchoate right which a party may have over a property may be sufficient interest to enable him to apply under Order 21, rule 89. Mr. Achuthan Nambiar contended that attachment of property does not confer any interest on the attaching creditor, except that if the property is alienated by the act of parties, such alienation will have no precedence over the attachment. He invites my attention to the observations in Krishnaswami Mudaliar v. Official Assignee, Madras1, where it is observed that an order of attachment merely restrains a debtor’s debtor from paying to the debtor the money attached and restrains the debtor from receiving the same. In Narayana v. Pappayi2, there is an observation that it has frequently been held that more attachment of property does not create any interest in the property and therefore it follows that the expression “affected by the sale” should not be construed as if the words were “having an interest in the property”. That mere attachment does not create interest in property is also seen from the decisions in Krishnama Naicker v. Sivaswami Chettiar3 and Manickka Chettiar v. Official Assignee, Madras4. It is also evident from section 64, Civil Procedure Code, that what the attachment prohibits is either payment of the money by the debtor’s debtor or the alienation of the property. It has to be observed that Order 21, rule 89, has undergone some transformation. The words originally were “holding an interest therein by virtue of the title acquired before such sale”. Now those words have been altered and the words “holding any interest” have been substituted. It seems to me that the substitution is intended to give a more beneficient and wider right than was contemplated before. A person who has attached property has certainly got interest in seeing that the property is not alienated or otherwise transformed. I am inclined to hold that an attaching creditor has got an interest in the property sufficient to enable him to make the deposit contemplated under Order 21, rule 89. A person who has attached property has certainly got interest in seeing that the property is not alienated or otherwise transformed. I am inclined to hold that an attaching creditor has got an interest in the property sufficient to enable him to make the deposit contemplated under Order 21, rule 89. In such circumstances the decision of the lower Court is right and the Civil Revision Petition is dismissed. No costs. K.C. ----- Petition dismissed.