JUDGMENT R.S Pathak, J. - This is a defendant's appeal arising out of it suit for a declaration that the plaintiff is the owner in possession of the plots in suit and that the plots were not liable to attachment and to sale in execution of an earlier decree. 2. Tota Ram filed suit No. 830 of 1964 against one Kashi Nath. On application made by him, the trial court made an order dated September 11, 1964 directing attachment before judgment. The attachment was duly effected on September 15, 1961. On that date Kashi Nath and one Maharaj Singh had already executed a sale deal in favour of Prabhu, the plaintiff before us, in respect of those very plots for it consideration of Rs. 1, 400/-. 3. Prabhu then filed a shit, out of which the present appeal arises, alleging that consequent upon the aforesaid sale cited he had entered into possession of the plots on September 15, 1964 and that he was entitled to the declaration mentioned above. 4. The suit was contested by Tota Ram alone. It was contended that the sale deed executed in favour of the plaintiff was without consideration and had been obtained fraudulently with a view to defeat the defendant's claim in the earlier suit. It was also asserted that the attachment before judgment had been made to the knowledge of the plaintiff and Kashi Nath, and that an injunction order had been served on Kashi Nath in the presence of the plaintiff even before the execution of the sale deed. 5. The trial court dismissed the suit. The plaintiff appealed. The lower appellate court allowed the appeal holding, inter alia, that the plaintiff was a transferee for consideration in good faith and therefore, following Order XXI, Rule 54 (3) of the Code of Civil Procedure, the order of attachment became effective only after a copy thereof had been affixed in accordance with that provision, and as that had not been done before the execution of the sale deed the plaintiff was entitled to the declaration claimed by him. 6. The defendant then filed the present second appeal.
6. The defendant then filed the present second appeal. The second appeal came on for hearing before our brother S. N. Singh, and in the opinion that there was a conflict in this Court between Raja Ram v. Gir Raj Kishore, AIR 1964 Allahabad 369, and Sri Krishna Gupta v. Ram Babu, AIR 1967 Allahabad 136. He referred the case to a larger Bench. And now the appeal is before us. 7. We have heard ]earned counsel for the appellant at some length. It seems to us that in view of the decision of this Court in Sri Krishna Gupta, AIR 1967 Allahabad 136 the matter stands concluded, and we find it difficult to say, in view of what follows, that there is any conflict between that decision and the decision in Raja Ram, AIR 1964 Allahabad 369 Section 64 of the Code provides : "Where an attachment has been made, any private transfer or delivery all the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment shall be void as against all claims enforceable under the attachment. Explanation :- For the purposes of this section, claims enforceable under an attachment include claims for the rateable distribution of assets." It will be noticed that the section sets out the legal effect and consequences where an attachment has been made. It assumes the making of a valid attachment. How an attachment will be made for the purposes of the Code is not mentioned in the section. For that we must turn to Order 21, Rule 54. That provision declares : "54 (1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor front transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. (2) 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, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate." 8.
It is clear that under Order 21, Rule 54 the attachment is made when an order prohibiting the judgment-debtor from transferring or charging the property in any way, and prohibiting all persons from taking any benefit from such transfer or charge, is made. The order is made, according to sub-rule (2), by proclaiming it at some place on or adjacent to such property by beat of drum or other customary mode and by affixing a copy of the order on a conspicuous part of the property and a conspicuous part of the Court-house, and where the property is land paying revenue to the Government, then by affixing a copy in the office of the Collector of the district in which the land is situate. Unless the procedure detailed by sub-rules (1) and (2) of Rule 54 is followed in its entirety it is difficult to say that an effective order of attachment has been made. Sub-rule (3) was added by this Court by Notification No. 4084/35 (a) -3 (7) published in the U.P. Gazette of July 24, 1926. That sub-rule provides that the order of attachment shall take effect as against purchasers for value in good faith from the date when a copy of the order is affixed on the property, and against all other transferees from the judgment-debtor from the date on which the order is made. The validity of sub-rule (3) was considered by a Bench of this Court in Pokhpal Singh v. Kanhaiya Lal, AIR 1946 Allahabad 438. York, J., after dealing with the provisions already set out above, expressed the view that an attachment could not be said to have been made unless and until the provisions of both sub-rules (1) and (2) of Rule 54 had been complied with. He affirmed the proposition thus : ".......the order of attachment (under sub-rule (I) cannot take effect as against anybody unless and until the provisions of sub-rule (2) have been complied with.
He affirmed the proposition thus : ".......the order of attachment (under sub-rule (I) cannot take effect as against anybody unless and until the provisions of sub-rule (2) have been complied with. It follows that for purposes of Section 64 it cannot be held that an attachment has been made unless and until all these provisions have been complied with." Proceeding from that premise, he was compelled to the conclusion that the provision contained in sub-rule (3) of Rule 54 was not only inconsistent with subrule (2) but was also repugnant to Section 64 inasmuch as it provided that an attachment could be effective even before it was made whereas Section 64 provided for certain results accruing only when the attachment had actually been made. Braund, J. following a parallel line of reasoning, came to the same conclusion. 9. The question next arose before this Court in Sri Krishna Gupta After considering a long catena of decisions, the learned judges approved of the view taken iii Pokhpal Singh, AIR 1946 Allahabad 438 . The reasoning in the earlier case was reinforced by reference to the view expressed by the Privy Council in Muthiah Chetti v. Palanippa Chetti, A.I.R. 1928 P.C. 139, that a thing for which provision has been made by law must be done in that way or not at all. The learned judges observed that the attachment in order to take effect must comply with the procedure prescribed under Order 21, Rule 54, sub-rules (1) and (2), and it was clear that sub-rule (3) being inconsistent with those sub-rules could have no legal effect. 10. Learned counsel for the appellant has placed before us the decision of this Court in Babu Ram v. Kaloo Mal, AIR 1934 Allahabad 1069. In that case the question which was raised before this Court in Pokhpal Singh, AIR 1946 Allahabad 438 and Sri Krishna Gupta, AIR 1967 Allahabad 136 was never raised at all. The Court proceeded to apply sub-rule (3) of Rule 54 and proceeding so, it held that the attachment took effect from the date of the order. Apparently that conclusion was based upon the finding that the transferee was not a purchaser for value in good faith. Much to the same effect was the decision in Raja Ram, AIR 1964 Allahabad 369.
Apparently that conclusion was based upon the finding that the transferee was not a purchaser for value in good faith. Much to the same effect was the decision in Raja Ram, AIR 1964 Allahabad 369. Here also the finding was that the transferee was not a purchaser for value in good faith and sub-rule (3) was applied without regard to the question whether it was inconsistent with sub-rules (1) and (2) of Rule 54. In our opinion, the two cases cited are clearly distinguishable. When the point decided by this Court in Pokhpal Singh, AIR 1946 Allahabad 438 and and Sri Krishna Gupta, AIR 1967 Allahabad 136 was never raised in Babu Ram, AIR 1934 Allahabad 1069 and Raja Ram, AIR 1964 Allahabad 369, it cannot be said that the latter cases constitute an authority for that point. It Was assumed all along that sub-rule (3) was a valid provision and it Was on that assumption that it was applied and the conclusions come to by the Court. In our opinion, there is no inconsistency between the two sets of cases placed before its. so as to warrant the reference of this case to a still larger Bench. 11. Learned counsel for the appellant pressed vehemently for an opportunity to show that the finding of the lower appellant court that the plaintiff was a purchaser for value in good faith was an erroneous finding, but in the view Which has found favour with us that sub-rule (3) of Rule 54 is not a valid provision, we are unable to see how this question assumes relevance. 12. No other point was pressed before us. 13. The appeal fails and is dismissed with costs.