manually to the auction-purchaser, the proceeds being handed to the judgmentcreditor in liquidation. B. then sued C. for damages. Held that C. was not liable. The purchaser became entitled to an undivided share of the chattel to be used by him as an undivided share. He would have the same right as the judgment-debtor, and would not be liable to the owner of the other undivided share merely for using it, nor unless he converted it to his own use. Tamizoodeen Mollah and others v. Nayatollah Sircar and another, S. W. R., XI. 528. A Court has no authority in a decree passed under this section to order the destruction of a building, Bhoobun Mohun Mundel v. Nobin Chander Bullub, B. L. R., X. 14. (b) An appeal lies from orders passed under this sec. 588. The section does not apply to the High Court in its ordinary civil jurisdiction, sec. 638. (c) Where shares in the East Indian Railway Company belonging to an executiondebtor who had absconded with the share certificates, were sold in execution, the transfer being executed by a Judge under sec. 262: Held that, although the Company's deed of settlement, under which their Act of Parliament declared that the Company should be regulated, gave to the Board of Directors a power of approval or disapproval of intending shareholders, they had no option as to registering a shareholder who purchased shares in execution; and that they were also bound to grant him, under the circumstances, new share certificates. R. v. E. I. R. Company, Ind. Jur. N. S., I. 258. (d) There are two notorious rulings under sec. 223 Act VIII. 1859, to which this section corresponds, Koer Bijoi Kesal Roy Bahadur v. Sundari, S. W. R., II. Mis. 30. 172. A decree-holder purchased, in execution of his decree, the right, title, and interest of the judgment-debtor, a member of a joint Hindu family, in the family dwellinghouse and land attached thereto. Held per majority of Judges, that sec. 224 of Act VIII. of 1859 did not apply; that A. was entitled to actual possession of the share of his judgment-debtor in the house as well as in the land, but his share must be marked out so as to cause the least possible inconvenience to the other mem. bers of the family. Per Kemp. J. An equivalent in value of the share in the house should be apportioned to him out of the land, which greatly exceeded the dwelling-house in value. (2) Oodit Chundar Mullick v. Pitumber Pyne, Wym. Q. C. R., 217. The original decree directed that the plaintiff should be put in possession in a manner so as not to annoy or insult the inmates of the house. This, in itself, was a vague decree, and the trouble commenced when it had to be executed. The house belonged to seven brothers, and possession of some of the outer buildings was given. There was, however, only one staircase by which the top of the house could be reached, and this was used by females of the family. It was ordered, nearly two years after the date of the decree, and therefore apparently in execution of the same, that the decree-holder was at liberty to build a staircase at his own expense in any part of the building which had been assigned to him, taking care however to put up purdahs on the top of the house, so as not to overlook the females. The judgment's-debtor's brothers were afterwards made to pay one-third of the value of the family staircase to the decree-holder. appealed. But respondent contended that the order making him build a staircase at his own expense was passed for the convenience of the family, and that he was still entitled to his share of the family staircase, or its equivalent in money, if the family would not let him use it. The High Court held that the decree-holder was entitled to his share of the staircase or its equivalent, and that he was entitled to compensation, having been made to build a staircase at his own expense, to the extent of the va lue of his share in the family staircase, which was a seventh and not a third. The provisions of sec. 235 do not apply to a person put into possession of land under this section. Ganesh Prashad v. Jai Kishen, N. W. P., I. 134. They A person having been put into possession under the terms of sec. 264 is no obstacle to his being put into the more direct and actual possession contemplated by sec. 263. Adoremonee Dossee v. Prem Chand. S. W. R., IX. 454. F-Of Attachment of Property. GENERAL attachment is now a thing of the past: the property which may and which may not be attached is briefly set forth in sec, 265, to which the reader is referred. A judgment-debtor or any person can be examined if he posseses any of such property, and be made to produce any documents relating thereto. Attachments are to be made *S. 17, n. (c.) +See p. 171. ts. 8. Act XVIII. 1869. Decree for immoveable property. case may be), for A. B., in a suit by E. F. against A. B.,” Delivery of immoveable property when in occupancy of tenant. Provided that if the occupant can be found, a notice in writing containing such substance shall be served upon him, and in such case no proclamation need be made. Partition of estate or separation of share. 265. (225) If the decree be for the partition or for the separate possession of a share of an undivided estate paying revenue to Government, the partition of the estate or the separation of the share shall be made by the Collector. (f) F-Of Attachment of Property. M. 266. (205) The following property†(g) is liable to attachment and sale in execution of Property liable to attachment and sale in execution a decree (namely), lands,† (h) houses of decree. or other buildings, goods, money, bank-notes, cheques, bills of exchange,+ hundís, promissory notes, Government securities, bonds or other securities for money, debts, shares in the capital or joint-stock of any railway, banking or other public company or corporation, and, exceptas hereinafter mentioned, all other saleable* property, $5 17, n. (c,) t()moveable or§immoveable, f(j) belonging to the judgmentdebtor, or over which, or the profits +(k) of which, he has a disposing powert() which he may exercise for his own benefit, and whether the same be held in the name of the judgment-debtor or by another person in trust for him or on his behalf: Provided that the following particulars shall not be liable to such attachment or sale (namely) (i) By written prohibitory orders in the case of debts not secured by negotiable instruments, shares, and other moveable property not in possession of the judgment-debtor, except property in Court; the order is to be prepared in duplicate, one copy posted up at the Court-house, the second sent to the person in whose charge the property may be. A debtor thus prohibited can pay the amount of his debt into Court and be fully released from all further liability. No attachment is to remain in force more than six months: if obedience be not previously rendered, the property attached will be sold, compensation deemed fit given to decree-holder out of proceeds, and balance paid to debtor. (ii) By actual seizure if the property be a negotiable instrument not in Court, or moveable property in judgment-debtor's possession. The property seized is to be kept in the custody and at the responsibility of attaching officer, or one of his subordinates, unless such process entail more expense than the property be worth, or it be subject to speedy decay, when such officer can sell it at once. Rules for maintenance, &c., of such property may be made by local Government, and must be followed by the attaching officer. An attaching officer who has gained access to a house may unfasten and open any door of a room in which he has reason to believe such property may be, but he must first allow all purdah-women to withdraw, taking precautions against clandestiue removal by them of property. (iii) By notice to a Court when the property is in custody of a Court or public officer, asking that it may be detained subject to further orders. Priority to such property between decree-holder and person other than judgment-debtor, should it arise, is to be decided by the Court in whose custody the property is. (iv) By an order of the Court if it be a money decree. Such order to direct (1) that the proceeds of the former decree be applied in satisfaction of the latter; or if the decree be passed by another Court, that (2) such second Court stay execution of its decree until the cancelling of the notice, or the decree-holder of the first Court apply for execu tion of his own decree to the second Court, which, on such application, shall apply the proceeds of its decree in satisfaction of the applicant's decree. Other decrees are dealt with as far as possible in the same way, by written order prohibiting such decrees being transferred or charged in any way. (v) By order prohibiting transfer of or charge on property. If the property be immoveable, the order to be proclaimed on or near such property, a copy fixed at the Court-house, and a second copy at office of Collector of the district where land is situate in case of revenue-paying land. On setting aside, reversal, or satisfaction of decree with attachment, costs, &c., an order is to issue for withdrawal of the attachment; all private alienations of property after notification of attachment are void; coin or currency notes attached to be paid over to the party entitled; claims and objections to attachment of property, on the ground of its nonliability, are to be investigated as if claimant or objector were a party to the suit, unless claim, &c., was designedly or unnecessarily delayed; pending investigation, sale may be postponed; claimant must show that at attachment he had interest in, or was possessed of, property attached, and if he succeed, an order for its release in whole or part can be issued. If the property be subject to claim of a person not in possession, Court may, if it thinks fit, continue attachment subject to such lien. Orders upon such claims are conclusive, subject to result of suits brought to establish the right claimed. Court can order the property attached to be sold, as far as necessary, and decree-holder paid. If property be attached in execution of more decrees than one, and be not in custody of any Court, the Court of the highest grade, or, where equal, the Court under whose decree the property was first attached, shall be the Court to receive, realise, and determine all objections. It should be borne in mind that the mere fact of attachment does not destroy judgmentdebtor's rightin property- Shinkur Sahoo v. Mungul Singh, S. W. R., XV. 158; and also that the right of attachment after judgment exists for the purpose of realising sums actually due under a decree, and not for that of securing property, so that it may at some future period become available for the realization of moneys not yet due, but to become payable under the decree. Ramdhun Mitter v. Koylashnauth Dutt, ib. XII. 457. A joint-decree was passed against two debtors, On the application of one of them, execution was ordered to be taken out against the other only. The decree not being satisfied, the creditor applied for and obtained an order for attaching the property of both. Held that, as the property of the one was not shown to be sufficient to cover the amount of the decree, the creditor was entitled, notwithstanding the previous order, to attach the property of the other debtor, the property of the former being sold first. Musst. Purseh Monee v. Kissoree Misser, ib. I. Mis. 14. *See p. 172. +See p. 173.. Ss. 64, &c. §Ch. XIV. and || Act XVIII. 1859,S,3,(19.) (a) the necessary wearing apparel of the judgmentdebtor, his wife and children: (b) tools of artizans, implements of husbandry, (m)* and such cattle as may, in the opinion of the Court, be necessary to enable the judgment-debtor to earn his livelihood as an agriculturist: (c) the materials of houses(n) and other buildings belonging to and occupied by agriculturists: (d) books of account: (e) mere rights to sue for damages: (f) any right of personal service :(0)* (9) stipends allowed to military and civil pensioners of Government, and political pensions :(p)* (h) one moiety of the salary of a public officer(q)* or of the servant of a railway company: (i) the pay and allowances of persons to whom the Na- (j) the wages of labourers (r) and domestic servants : Explanation. The particulars mentioned in clauses (g) (h) (i) and (j) are exempt from attachment or sale whether before or after they are actually payable: Provided also that nothing in this section shall be deemed (a) to exempt the materials of houses and other buildings from attachment or sale or in execution of decrees for rent, or Power to summon and examine persons as to property lia ble to be seized, (b) to affect the statute for the time being in force for punishing mutiny and desertion, and for the better payment of the army and their quarters. M. 267. The Court may of its own motion or on the application of the decree-holder‡ summon any person whom it thinks necessary, and examine him in respect to any property liable to be seized in satisfaction of the decree, and may require the person summoned to§ produce any document in his possession or power relating to such property, and before issuing the summons of its own motion, shall declare the person on whose behalf the summons is so issued. M. 268. (236) In the case of (a) a debt not secured by Attachment of debt, share, all negotiable instrument,(b) a share and other property not in in the capital of any public company possession of judgmentor corporation, (c) other moveable debtor. property not in the possession of the judgment-debtor, except property deposited in, or in the custody of, any Court, the attachment shall be made by a written order prohibiting, (Continued on page 174.) (g) A decree-holder is entitled to execute his decree against any property devolving on the judgment-debtor before the decree has been fully executed, and this without reference to whether the property was hypothecated to him; and the denial of the judgment-debtor that he is interested in the property which it is sought to make subject to execution can have no effect. Buldeo Singh v. Dwarka Dass, 1 Agra Rep. A. C. 169. (h) When a party attaches property, he also attaches the profits thereof; but if, when attaching the property, he allows the original owner to remain in possession and enjoy the profits, those profits cease, from the moment they find their way into the pocket of the owner, to be specifically liable for the judgment-debt under the attachment. Ram Coomar Ghose v. Gobind Chundar Sandyal and others, S. W. R., XII. 391. (i) The Privy Council, in the case of Syad Tafazal Hossein Khan v. Rughoo Nath Prashad, B. L. R., VII. 186, held that sums to be attached must be, not inchoate, but existing and definite; and although liquidated demands in their nature definite and certain, though sub lite and unproved, may be seized, a mere expectancy or a mere right of suit cannot be attached; the attachment must operate at the time of attachment and not be anticipatory so as to fasten on some future state of property in which the suit may result. A claim which may accrue under a pending award cannot be sold in execution. Similarly, in the case of Abbott v. Abbott and Crump, B. L. R., V. 382, where a decree-holder, who was also a partner of the judgment-debtor, sought to attach the share of the judgment-debtor in the assets of the partnership business, the business then being in the house of the receiver of the Court under a decree for dissolution and winding up: Held that such share was too indefinite to be sold; it was looked upon as quite distinct from a share in a Railway Company, which by statute and common usage is made the subject of sale. A suit having been brought in a Small Cause Court, on a bond which had been entered into by a principal who had since deceased, and whose representatives were not within the jurisdiction of the Court, the claim was enquired into against the surety alone, who confessed liability. In the course of the enquiry, it appeared that the deceased had left some property within the Court's jurisdiction. The amount claimed was decreed against the surety. Held that the property of the deceased could not be taken in execution of a decree against the surety. Kalli Charn v. Surreeram and others, S. W. R., A mere right of suit is not property; but a debt or property which is seizable, or may be attached, does not lose those qualities merely by being the subject of a pending suit. Syad Tafazal Hossein Khan, v. Rughoo Nath Prashad, M. I. A., XIV. 40. Property substantially conveyed for the benefit and support of a judgment-debtor and his family is liable for his debt, even though it was purchased in the name of his Fukeerood-deen Muhammad Ahsan Chaudhri, v. Karim Bakhsh Chaudhri, S. W. R., V. 43. son. (7) Where, according to a will, until the testator's wife came of age his mother had the interest in his property, and the rent which the mother recovered from the tenants was on her own account, and not as guardian of the wife: Held that a decree obtained against the mother was not as guardian of the minor, but personal, and that the property of the wife could not be sold in execution of a decree personal to the mother. Gooroo Dass Baboo, v. Soondur Koomari Debia, ib, VIII. 217. There may be a valid sale, upon an execution in an action of damages for a tort, of the share of undivided family property to which, if a partition took place, the judgment-debtor would be individually entitled. Such damages in the costs recovered constitute a judgment-debt, in respect of which the judgment-creditor's rights are the same as those upon any other judg ment for payment of money. Virasvami Gramini v. Ayyasvam Gramini. 1 MadRep. O. C., 471. The power of the Court to attach the property of an insolvent is confined strictly to the provisions of the Insolvent Act. In re Khettsey Das, B. L. R., III. App. 14. (k) This section, so far as it relates to immoveable property, is not extended to Mufassil Small Cause Courts. (7) Disposing power. Intricate questions constantly arise as to the disposing power which a Hindu widow possesses over her property, acquired or inherited, and also as to the disposing, power possessed by members of a joint undivided Hindu family. Important rulings on these two subjects will be found in the Appendix under the head "Disposing Power." No disposing power rests with the sebait over a taluk dedicated to the religious services of an idol. Maharance Shibessowree Debia v. Mothooranath Acharjo. M. I. A., XIII. 270; nor with the trustees of a pagoda over trust property. |