JUDGMENT
1. This is a plaintiff's appeal arising oat of a suit for sale based upon two mortgage-deeds of the 26th of May 1913 and the 6th of December 1913 executed by the defendants, Gauri Shankar and Beni Prasad, for Rs., 600 and Rs. 300, respectively. The property mortgaged consisted of two houses. The Court of first instance dismissed the claim on the basis of the mortgage of the 6th of December 1913 and decreed the claim on the basis of the mortgage of the 26th of May 1913. The defendant alone appealed and on appeal the lower Appellate Court dismissed the claim also on the basis of the deed of the 26th of May 1913. The plaintiff has come here in second appeal and the contention is that the decision on the point of law raised in the Court below by that Court is incorrect and that on a true interpretation of the law the claim under the bond of 26th of May 1913 should have been decreed and the lower Appellate Court ought o have dismissed the appeal in respect thereto. We are concerned only with the mortgage of the i6th of May 1913. Gauri Sbankar and Bani Prasad were judgment-debtors under two decrees. One was obtained against them by Koka Mal who applied for execution and in execution attach the two houses on the 9th of June 1913 Lala Mal was another decree-holder against them who apparently also applied for execution of his decree and the property having been already attached in Koka Mal's decree he applied for a rateable distribution on the 12th of February 1913. Koka Mal proceeded with his execution and the property was put up for sale and sold on the 5i5th of Marsh 1913. On the 2nd of April 1913 the judgment-debtors and Koka Mal made an application to the Court stating that the decree of Koka Mal has been satisfied out of Court and asking that the sale be set aside as the decree had been satisfied. On the 26th of April 1913 the Court refused to set aside the sale on this ground, being apparently of opinion that these two persons were combining to defeat the claim of Lala Mal. However, it appears that the auction-purchaser having deposited his one fourth at the date of sale failed to deposit the remaining three-fourths of the purchase-money and on the 24th of May 1913 the Court set aside the sale for this reason. Then comes the mortgage of the 26th of May 1913 which is the basis of the present claim, On the 20th of June 1913 Lala Mal applied, for and obtained attachment of the property in execution of his own decree. On the 24th of June 1913 he applied to the Court which was executing the decree of Koka Mal and asked that rateable distribution should be allowed to him in this way, that Koka Mal be directed to bring into Court the money that he had received from the judgment-debtors in satisfaction of his decree, and that out of it he (Lala Mal) should receive his fair share. This application of his was disallowed on the 6th of July 1913. The execution of Lala Mai's decree proceeded. The property was put up to auction and was purchased by one Piare Lal who in his turn sold it to Kundan on the 12th of December 1914. Kundan is the present respondent before us. On behalf of the defendant it was urged in the Court below that the private transfer of the 26th of May 1913 was void as against him because Lala Mal had applied fur a rateable distribution prior to the 26th May 913 and the plea is babeii upon the wording of the Explanation to Section 64 of the Code of Civil Procedure. The learned District Judge has expressed his opinion in the following language; The property, in my opinion, remained under attachment until the order of the 5th of July 1913 and, in view of the Explanation attached to Section 64 of the Civil Procedure Code, Lila Mai's claim for rateable distribution was undoubtedly enforcible under that attachment and the sale-deed of the 26th of May 1913 is, therefore, void as against the defendant-appellant.
2. We are referred on behalf of the plaintiff respondent to the Privy Council ruling in Mina Kumari Bibi v. Bijoy Singh Dudhuria 40 Ind. Cas. 242 : 44 C. 662 : 1 P.L.W. 425 : 5 L.W. 711 : 32 M.L.J. 425 : 21 C.W.N. 585 : 21 M.L.J. 344 : 15 A.L.J. 382 : 25 C.L.J. 508 : 19 Bom. L.R. 424 : (1917) M.W.N. 473 : 441 : 44 I.A. 72 (P.C.)S, but that ruling is under the old Civil Procedure Code and it is argued that it is net applicable to the present case, The question is one which was considered by a Full Bench of the Madras High Court in Annarnalai OheAtiar v. Palamalai filial 43 Ind. Cas. 539 : 41 M. 265 : (F.B.) : 22 M.L.T. 461 : 33 M.L.J. 707 : (1917) M.W.N. 882 : 7 L.W. 398, and in that case the decision of their Lordships of the Privy council was considered, and it was clearly held that the Explanation attached to Section 64 had not materially advanced the benefits of execution creditors who had applied for rateable distribution. The decision of their Lordships of the Privy Council is also quite clear on the point. If we apply the ratio decidend of that judgment to the facts of the present case it is quite clear that the right of Kundan is a right which is enforcible not under the attachment of the 9th of June 1912 but under the attachment by Lala Mal of the 20th of June 1913. His rights cannot be referred in any way to the prior attachment but only to the subsequent attachment which was also subsequent to the mortgage of the 26th of May 1903. We do not think it necessary to add anything to the very cogent reasons to be found in the Full Bench decision of the Madras High Court. We fully agree with that decision, and, in our opinion, the decision of the Court below was incorrect. The result is that was allow this appeal, set aside the decree of the Court below and restore: that of the Court of first instance. The plaintiff will have his costs in this Court and in the lower Appellate Court as against the defendant-respondent. Costs in this Court will include fees on the higher scale.