Gaya Thakur v. Bhagwat Prasad Sharma — 1963 DIGILAW 15 (PAT)

Judgment Mahapatra, J. 1. Defendant Mo. 1, who is the appellant, had obtained a money decree against defendant No, 2 in Money Suit No. 206 of 1949 on the 19th of February, 1S51, and had levied an execution of the same in Execution case No. 316 of 1954, When he had applied for sale of the suit properties, an objection was raised by the plaintiff under Order 21 Rule 58 of the Code of Civil Procedure on the ground that he had purchased the properties for Rs. 2500.00 from defendant No. 2 by a registered deed of sale on the 22nd of February, 1955, and had come in possession of the same. The judgment-debtor (defendant No. 2). having no interest in those properties, they could not be brought to sale to satisfy the decree against him (defendant No. 2). This claim of the plaintiff was overruled and he, therefore, brought a suit under Order 21 Rule 63 of the Code of Civil Procedure for declaration of his title to and for release from attachment and sale of the properties. It should be mentioned here that while the money suit of defendant No. 1 against the father of defendant No. 2 was pending, the former (defendant No. 1) had obtained an order for attachment of some of the suit properties before judgment on the 16th of February, 1949, and that was made absolute on the 22nd of February, 1950. In the case for the execution of the money decree, that attachment continued, and on that basis defendant No. 1s contention was that the sale by defendant No. 2, the judgment debtor, in favour of the plaintiff was void under Sec. 64 of the Code of Civil Procedure. 2. The main issue in the suit was: "Has the plaintiff got title to the land in dispute. If so, is he entitled to a decree for the reliefs claimed ?" The trial court found that the sale by defendant No. 2 to the plaintiff was for consideration and the attachment obtained by defendant No. 1 in his money suit against the father of defendant No. 2 before judgment was effective in regard to survey plots 112, 422, 135, 3035 and 3041, and as such, the plaintiffs purchase of those properties was void as against all claims enforceable under that attachment. In regard to other properties of the suit, in absence of any attachment by the court, the plaintiffs purchase was held to be valid and his suit was decreed in that respect. Against that judgment, defendant No. 1 appealed, and the plaintiff also filed a cross-objection to the dismissal of his suit about the five survey plots mentioned above. The lower appellate court took the view that the provisions under Rule 7 of Order 38, Civil Procedure Code, in regard to attachment of immoveable properties before judgment, had not been followed In Money Suit No. 206 of 1949 brought by defendant No. 1, and as such, there was no valid attachment to defeat the plaintiffs purchase of any of the suit properties. In that view, the decree passed by the trial court in favour of the defendant No. 1 was reversed and the entire suit was decreed. Defendant No. 1 brought the second appeal to this Court against that judgment. 3. For the appellant, it was contended that of the suit properties, survey plots 112, 422, 135, 3035 and 3041 had been validly attached before judgment in his money suit against defendant No. 2s father, and that attachment continued in Execution Case No. 316 of 1954 where he had applied for sale of the attached properties to satisfy his decree. It appears from the judgment of the trial Court that Ext. E, the order-sheet of Money Suit No. 205 of 1949, showed that the attachment was served and notice was issued to the defendants of the money suit to show cause; no cause, however, was shown and the order of attachment was made absolute. There is no dispute that there had been an attachment and it was in the prescribed form No. 5 given in appendix F, Schedule I of the Code of Civil Procedure. An objection of the respondent (the plaintiff) was that in that form of attachment there was no order prohibiting the defendants to transfer or charge the property specified in the schedule thereto annexed by sale, gift or otherwise, nor there was any prohibition to other persons from receiving the same property by purchase, gift or otherwise. An objection of the respondent (the plaintiff) was that in that form of attachment there was no order prohibiting the defendants to transfer or charge the property specified in the schedule thereto annexed by sale, gift or otherwise, nor there was any prohibition to other persons from receiving the same property by purchase, gift or otherwise. It was urged that Rule 7 of Order 38 provided: , "Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree" and that manner was prescribed in Rule 54 of Order 21. The latter provision is in respect of attachment of immovable property in an execution case and the prescribed form to be used in that connection is Form No. 24 in Appendix E of Schedule I of the Code which states: "Whereas you have failed to satisfy a decree passed against you ... in favour of ... it is ordered that you ..... be, and you are hereby, prohibited and restrained, . . . from transferring or charging the property specified in the schedule hereunto annexed, by sale, gift or otherwise...." There cannot be the slightest doubt that this form, which speaks of a decree already passed, could not be used in a case of attachment before judgment. When pointed out this difficulty, learned Counsel for the plaintiff-respondent argued that though this form could not be used, portions of it could have been amended suitably to conform to the provisions of attachment before judgment. This is clearly wrong, because the Code itself has prescribed three Forms Nos. 5, 6 and 7 of Appendix F of Schedule 1 to be used when orders are passed under Rules 5 and 6 of Order 38 of the Code. When an enactment provides for a particular thing to be done in a particular manner and prescribes a particular form to be used to satisfy that prescribed manner, it will not be open to the Court to make use of any other form in a mutilated or amended manner. No doubt Rule 7 of Order 38 speaks that the attachment before judgment shall be made in the manner provided for attachment of property in execution of a decree. The manner of attachment of immoveable property in execution of a decree is provided in Sub-clause (2) of Rule 54 of Order 21. No doubt Rule 7 of Order 38 speaks that the attachment before judgment shall be made in the manner provided for attachment of property in execution of a decree. The manner of attachment of immoveable property in execution of a decree is provided in Sub-clause (2) of Rule 54 of Order 21. That lays down: "The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house, . . ." It is not complained by the plaintiff that this manner of proclamation of the order of conditional attachment before judgment was not observed. His contention is that the provisions of Sub-clause (1) of Rule 54 of Order 21 were also to be fulfilled. There it is stated: "Where the property Is Immoveable, the attachment shall be made by an order prohibiting the judgment-debtor from. transferring or charging the property in any way, and all persons from takinp any benefit from such transfer of charge". This is not a mode or manner of making the attachment. Sub-clause (1) relates to the form in which the order of attachment in execution should be made, and once such order is made, then would come the manner in which it should be served or proclaimed and for that, one has to took to Sub-clause (2) of Rule 54. Form No. 24 of Appendix E is in conformity with Clause (1) of Rule 54. How that order will be served and proclaimed on the spot for the knowledge of a!l concerned is not contained in that form. That is only provided for in Sub-clause (2) of Rule 54. 4. Rule 5 of Order 38 is primarily to call upon a defendant to furnish security or to place at the disposal of the Court some property that may be sufficient to satisfy the decree, if and when passed. In Sub-clause (3) of that rule it is provided that the Court may also in the order direct the conditional attachment of the whole or any portion of the property specified by the plaintiff to be attached. In Sub-clause (3) of that rule it is provided that the Court may also in the order direct the conditional attachment of the whole or any portion of the property specified by the plaintiff to be attached. Rule 5 is thus a provision made for the benefit of the plaintiff before the judgment is passed in his favour, in cases where the defendant is about to dispose of the whole or any part of the property or is about to remove the same from the locat limits of the jurisdiction of the Court in which the action against him is pending. Conditional attachment can also be made under Rule 6 of that Order in those cases in which such attachment was not made under Rule 5. Form No. 5 in Appendix F directs the bailiff of the Court to attach the property and keep the same under safe and secure custody until the further order of the Court. Once the order in that form is issued by the Court and proclaimed on the spot as well as in a prominent place of the Court-house, the property so attached will be deemed to be in the custody of the Court, That itself will be sufficient to protect the property from being transferred at the instance of the defendant or any person claiming wider him till the attachment is lifted, or the decree that may be passed in that suit, is otherwise satisfied. Absence of a prohibitory order preventing the defendant from transferring that property or preventing others from acquiring the same will not affect the custody of the property with the attaching Court. We have to keep in view that Order 38 Rule 5 and 6 are really by way of a security for the satisfaction of the plaintiffs claim, if proved. The provisions of S." 64 will apply to such conditional attachment also. 5. Attachment can be effected only when an order to that effect is made, and that order is served and proclaimed in the manner mentioned in Sub-clause (2) of Rule 54 of Order 21 of the Code. The mere order passed by the Court Is not an attachment. Attachment Itself Is something separate from the mere order and Is something which is to be oone and effected before attachment can be declared to have been accomplished. The mere order passed by the Court Is not an attachment. Attachment Itself Is something separate from the mere order and Is something which is to be oone and effected before attachment can be declared to have been accomplished. In the present case there was no lack of jurisdiction on the part of the Court which passed the conditional attachment of the properties in question. The plaintiff complains that the Court in the exercise of its jurisdiction which it possessed did not act according to the mode prescribed by the statute. Assuming it was so, (I have already pointed out that it was not so) it related obviously not to the existence of Jurisdiction but to the exercise of it in an irregular or Illegal manner. Non-compliance with the procedure prescribed as essential for the exercise of Jurisdiction Is a defect that can be waived; see Md. Ali Ismail V/s. Baldeo Singh, (S) AIR 1955 Pat 115 , Pisani V/s. Attorney General, Gibrattar, (1874) LR 5 PC 516 and Ledgard V/s. Bull, (1885) 13 Ind App 134 (PC). In the last case it was observed : But there are numerous authorities which establish that when, in a cause which the judge is competent to try, the parties without objection join issue, and go to trial upon the merits, the defendant cannot subsequently dispute his jurisdiction upon the grounds that there were irregularities in the initial procedure, which, if objected to at the time, would have led to the dismissal of the suit". In the present case it appears from the order sheet under date, the 19th of January, 1950, that conditional attachment had been served and the defendants applied for time on the ground that they would file a verified petition in the attachment matter. No such petition appears to have been filed and on the 22nd of February, 1950, the attachment was made absolute. On that date the order sheet shows that the defendants asked for time to file written statement. Thus the defendants were aware of the conditional attachment, but they did not avail themselves of the opportunity to raise any objection in regard to the illegality or irregularity, if any, in the manner in which the attachment was effected. On that date the order sheet shows that the defendants asked for time to file written statement. Thus the defendants were aware of the conditional attachment, but they did not avail themselves of the opportunity to raise any objection in regard to the illegality or irregularity, if any, in the manner in which the attachment was effected. That would amount to a waiver on their part and defendant No. 1 of the present suit claiming through the defendant of the money suit, will be bound by that. 6. Learned Counsel for the plaintiff-respondent referred to the case of Sadhu Prasad Sah V/s. Satnarain Sah, AIR 1939 Pat 81. In that case it was found that the writ of attachment which was served by the peon of the Civil Court did not mention the property that was to be attached, although such property was mentioned in the application made by the plaintiff, on the basis of which conditional attachment was ordered. For absence of the description of the property in the writ of attachment it was held that that was not a valid and effective attachment. That was enough for the disposal of that case. One of the learned Judges who formed the Bench, however, observed with reference to form No. 5 of Appendix F : "Looking to the form itself, it seems to suggest that it primarily contemplates the attachment of moveable property because it directs the serving officer to keep the property under safe and secure custody. However, it is the form in which the order under Order 38 Rule 5 is to be served, but the actual attachment where the property is immoveable, is to be effected in the manner provided in Order 21 Rule 54 for which the proper form is prescribed in Appendix E, Form 24". It was not brought to the notice of the learned Judge that the wording of the Form 24 could not at all apply to a conditional attachment before judgment. 7. The case of Jagannath Prasad V/s. Mahabir Ram Kumar, (S) AIR 1955 Pat 231 though cited by the respondent, has no application to the present case. There the question was, with effect from which date, the date on which the order of attachment was made or the date when that order was proclaimed, the attachment will be effective and the transfer would be hit under Sec. 64, Civil Procedure Code. There the question was, with effect from which date, the date on which the order of attachment was made or the date when that order was proclaimed, the attachment will be effective and the transfer would be hit under Sec. 64, Civil Procedure Code. It was held that any transfer made after the date when the writ of attachment was served will come under Sec. 64. 8. Similarly, two other cases Pokhpal Singh V/s. Kanhaiya Lal, AIR 1946 All 438 and Manoharlal Banerji V/s. Bengal Immunity Co. AIR 1945 Cal 308 are of no assistance, as both those cases were in regard to attachment in a case of execution of a decree. There is no doubt that in such cases the order of attachment and the writ have to contain a prohibitory order against any transfer of the attached property as contained In Clause (1) Rule 54 of Order 21, Civil Procedure Code. 9. In First Appeal No. 140 of 1956 (with First Appeal No. 119 of 1957) Smt. Savitri Devl V/s. Bank of Bihar Ltd. which was disposed of on the 5th February, 1962, this Court took the view that for conditional attachment before judg-ment Form No. 24 of Appendix E was not applicable and the manner of attachment mentioned in Rule 7 of Order 38 in case of immoveable property relates to the provision made in Sub- Clause (2) of Rule 54 of Order 21. The proper form to be used for conditional attachment was Form No. 5 of Appendix F. The case of Harihar Pandey V/s. Vindhyachal Rai, AIR 1949 Pat 170 in which Form No. 24 of Appendix E was held to be proper for conditional attachment of immoveable property (before judgment) was considered and distinguished. 10. For the reasons given above, I have to hold that in the present case the attachment before judgment of survey, plots 112, 422, 135, 3035 and 3041 in Money Suit No. 206 of 1949 was valid and the transfer of those properties made by sale by defendant No. 2 in favour of the plaintiff was void under Sec. 64 of the Code of Civil Procedure. The plaintiff derived no title in respect of those properties. Accordingly, his suit will stand dismissed in regard to those items. 11. The plaintiff derived no title in respect of those properties. Accordingly, his suit will stand dismissed in regard to those items. 11. The result is that the appeal is allowed in part, the judgment and decree passed by the appellate Court are modified, and the judgment and decree passed by the trial Court are restored. In view of success of the plaintiff and the defendant No. 1 in part, the parties will bear their own costs throughout. Tarkeshwar Nath, J. 12 I agree.