BABURAM BALMUKUND v. JAINARAYAN SUSHILKUMAR — 1975 DIGILAW 105 (GUJ)

D. P. DESAI, J. ( 1 ) BEFORE coming to the merits of this case one contention of law raised by Mr. Oza for the appellant based upon the provisions of sec. 136 of the Civil Procedure Code should be dealt with. As stated earlier the warrant of attachment at Exh. 9 was sent directly by the trial Court to the Small Causes Court at Delhi; and the attachment was effected. It was not sent through the District Court at Delhi as contemplated by sec. 136 of the Code. This warrant Exh. 9 was made over by the Small Causes Court to one bailiff on April 21 1975 directing return thereof to be made to the Nazir on or before April 25 1975 Though this contention was not taken in the trial Court the contention involves a question of law to be decided on the aforesaid facts which not in dispute; and therefore I have allowed Mr. Oza to raise this contention. Of course Mr. Shelat for the other side stated that in the absence of a plea based on sec. 136 of the Code it could not have been ascertained whether after receipt of the warrant the Small Causes Court straightway proceeded to execute it or obtained directions from the District Court in Delhi in view of the provisions of sec. 136 of the Code. It is not possible to agree with this submission of Mr. Shelat. The warrant shows that it was signed on April 19 1975 The order of the small Causes Court making over the warrant to one bailiff and ordering its execution on the spot on 21-4-1975 would show that this order was obtained soon after the warrant reached the Small Causes Court at Delhi. We have therefore to deal with the question of law raised by Mr. Oza. We have therefore to deal with the question of law raised by Mr. Oza. Sec. 136 or the Code reads as under:136 (1) Where an application is made that any person shall be arrested or that any property shall be attached under any provisions of this Code not relating to the execution of decrees and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made the Court may in its discretion issue a warrant of arrest or make an order of attachment and send to the District Court within the local limits of whose jurisdiction such person or property resides or is situate a copy of the warrant or order together with the probable amount of the costs of the arrest or attachment. (2) The District Court shall on receipt of such copy and amount cause the arrest or attachment to be made by its own officers or by a Court sub-ordinate to itself and shall inform the Court which issued or made such warrant or order of the arrest or attachment. (3) The Court making an arrest under this section shall send the person arrested to the Court by which the warrant of arrest was issued unless he shows cause to the satisfaction of the former Court why he should not be sent to the latter Court or unless he furnishes sufficient security for his appearance before the latter Court or for satisfying any decree that may be passed against him by that Court in either of which cases the Court making the arrest shall release him. (4) Where a person to be arrested or movable property to be attached under this section is within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Fort William in Bengal or at Madras or at Bombay the copy of the warrant of arrest or of the order of attachment and the probable amount of the costs of the arrest or attachment shall be sent to the Court of Small Causes of Calcutta Madras or Bombay as the case may be and that Court on receipt of the copy and amount shall proceed as if it were the District Court. THIS section came up for interpretation before different High Courts leading to a conflict of view on the question whether an attachment levied outside the territorial jurisdiction of the Court ordering attach ment in contravention of the provisions of sec. 136 is a mere irregularity of procedure which can be waived or is such that it would vitiate the attachment rendering it a nullity on the ground that the transferee Court had no jurisdiction to execute the warrant of attachment. Patna Madhya Bharat Allahabad and Mysore High Courts took the view that the contra- vention of the provisions of sec. 136 of the Code resulting in effecting of attachment by a Court which has got no directions from the District Court vitiates the attachment. This view was taken in BANSROPAN SINGH V. EMPEROR A. I. R. 1937 PATNA 603 RAMESHWARDAYAL RAMSWAROOP V. BHEEMSAN DULICHAND A. I. R. 1951 MADHYA BHARAT 82 RAHIM BUX and SONS V. FIRM SAMIULLAH and SONS A. I. R. 1963 ALLAHABAD 320 AND S. A. PATIL V. P. K. RAJPUT A. I. R. 1973 MYSORE PAGE 82. The contrary view was taken by TRAVANCORE-COCHIN and KERALA HIGH COURTS IN MARIAMMA V. ITTOOP POULO A. I. R. 1962 TRAVANCORE-COCHIN 159 (F. B.) and M. O. THOMAGUTTY V. MADATHIL NANU A. I. R. 1963 KERALA 193. The latter view proceeded on the basis that the Court ordering attachment had an undisputed jurisdiction to order attachment of properties situated outside its territorial jurisdiction and that sec. 136 only provides for the procedure to be adopted for the purpose of carrying out of the order of attachment. It was also pointed out that contravention of this procedural requirement would not affect the jurisdiction of the Court ordering attachment. For this purpose the Full Bench of the Travancore-Cochin High Court took the analogy from cases decided with regard to a decree transferred for execution to another Court and the contravention of the procedure required for sending the decree to the transfer Court. The question which I have to decide is; what would be the position with regard to the attachment effected without complying with the requirements of the provisions of sec. 136 of the Code. ( 2 ) SUB-SEC. (1) of sec. The question which I have to decide is; what would be the position with regard to the attachment effected without complying with the requirements of the provisions of sec. 136 of the Code. ( 2 ) SUB-SEC. (1) of sec. 136 provides for making of an order of attachment and sending to the District Court within the local limits of whose jurisdiction the property to be attached is situate a copy of the warrant or order together with the probable amount of the costs of the arrest or attachment. What has the District Court to do on receipt of the order of attachment is laid down by sub-sec. (2 ). In my opinion this sub-sec. will be material for resolving the question posed. There is no alternative left to the District Court which receives the order of attach- ment from any Court under sec. 136 of the Code but to cause the attachment to be made by its own officers or by a Court subordinate to itself. The District Court or the Court subordinate thereto to whom the order of attachment is sent cannot question the order for attachment passed by the other Court. The section gives a mandate to the District Court to cause the attachment to be made by its own officers or by a Court subordinate to itself. Therefore the matter pertains to the procedure provided for execution of the order of attachment. The section is not enacted with a view to confer power of execution of the order of attachment on the District Court alone. The object of the provision is not to provide for conferment of exclusive power of causing the attachment to be made on the District Court. The object is to provide for an agency through which the order of attachment made by the outside Court has to be carried out. There is nothing in sec. 136. which would justify the view that it provides for competency to attach property by the Court to whom the order of attachment is sent under this section. The section nowhere says that on receipt of the order of attachment it shall be competent to the District Court to cause the attachment to be made. On the contrary the section assumes competence of the District Court to cause the attachment to be made and directs the District Court to execute the order of attachment. The section nowhere says that on receipt of the order of attachment it shall be competent to the District Court to cause the attachment to be made. On the contrary the section assumes competence of the District Court to cause the attachment to be made and directs the District Court to execute the order of attachment. In my opinion therefore sec. 136 is not an empowering section in the sense that power to execute an order of attachment passed by an outside Court is conferred upon the District Court. The section relates to the procedure only laying down what the District Court should do on receipt of the order of attachment. In fact the manner in which a valid order of attachment made by a Court with jurisdiction can be executed would pertain to the realm of procedure and not to the jurisdiction to execute the order of attachment. Sec. 136 occurs in Part XI which contains miscellaneous provisions. The Division Bench of Allahabad High Court in RAHIM BUX and SONS V. FIRM SAMIULLAH and SONS (A. I. R. 1963 ALLAHABAD 320 proceeds upon the jurisdictional aspect of sec. 136. In paragraph 17 the following observations have been made: (17 ). It appears to us that the provisions of sec. 136 are quite explicit and even though it may to some extent be said that that section lays down procedure for attachment of property outside the jurisdiction of the Court ordering the same it also prescribes jurisdiction for attachment of property in such cases The very fact that the order of attachment has to be sent to some other Court indicates that the Court ordering the attachment has no jurisdiction to cause the attachment being made outside its own territorial jurisdiction. In order therefore that attachment may be made two conditions must be satisfied: (1) The property must lie within the territorial jurisdiction of the Court causing the attachment to be made. (2) The Court ordering the attachment must be seized of the matter. IN paragragh (17a) the learned Judges said inter alia as under: (17a ). The Court ordering attachment before judgment is seized of the matter but the property does not lie within its jurisdiction. (2) The Court ordering the attachment must be seized of the matter. IN paragragh (17a) the learned Judges said inter alia as under: (17a ). The Court ordering attachment before judgment is seized of the matter but the property does not lie within its jurisdiction. If the order of attachment is sent to a Court other than the District Court the property required to be attached may lie within the jurisdiction of that Court hut that Court cannot be seized of the matter unless the proceedings for attachment are properly before it. Sub-secs. (1) and (2) of sec. 136 therefore prescribe not only the manner in which the attachment shall be made but also jurisdiction for making the attachment. On receipt of the order of attachment. the District Court is seized of the matter and the property is also within its jurisdiction and attachment can therefore be made by it. Sub-sec. (2) however prescribes that the District Court may cause the attachment to be made by its own officers or by a Court subordinate to itself. If the District Court exercises the option to get the attachment made by a Court subordinate to itself it will be only then that that Court will be seized of the matter and since the property also lies within its jurisdiction it Will be able to get it attached. (Emphasis supplied ). THE reason given by the Court is that the provisions of sub-sections (1) and (2) of sec. 136 apart from prescribing the manner of effecting the attachment also prescribe jurisdiction for making the attachment. With great respect it is not possible to agree with this reasoning. It has been pointed out earlier that sub-sec. (2) of sec. 136 gives a mandate to the District Court to cause the attachment to be made on receipt of the order of attachment. It does not say that on receipt of the order of attachment it will be competent to the District Court to cause the attachment to be made. On the contrary the mandate is given having assumed that the District Court is competent to cause the attachment to be made. Therefore in my opinion the provisions of sub-secs. 5 (1) and (2) of sec. 136 only provide for the manner of carrying out the order of attachment. In this sense they pertain to the procedural aspect only. On the contrary the mandate is given having assumed that the District Court is competent to cause the attachment to be made. Therefore in my opinion the provisions of sub-secs. 5 (1) and (2) of sec. 136 only provide for the manner of carrying out the order of attachment. In this sense they pertain to the procedural aspect only. ( 3 ) IN S. A. PATIL V. P. K RAJPUT A. I. R. 1973 MYSORE 82 the learned Single Judge who decided that case has relied upon the same principle stated by the Allahabad High Court viz. that the section confers jurisdiction on the Court which has not made an order of attachment to give effect to the order of attachment made by another Court. In the Patna case (BANSROPAN SINGH V. EMPEROR A. I. R. 1937 PATNA 603 the view taken was that the provisions of sec. 136 of the Code must be strictly observed and the warrant must be endorsed to the District Court of the district in which the warrant is to be executed. In that case the warrant sent to the Munsif direct was held to be defective. Madhya Bharat case (RAMESHWARDAYAL RAMSWAROOP V. BHEEMSEN DULICHAND A. I. R. 1951 MADHYA BHARAT 82 itself was considered to be slightly distinguishable by the Allahabad High Court because the warrant of attachment was sent to the Nazir of the Court within the local limits of whose jurisdiction the property was situated and it was held that the attachment was illegal. We are not concerned with such a situation here. ( 4 ) THE Full Bench of Travancore-Cochin High Court in MARIAMMA V. ITTOOP POULO A. I. R. 1952 TRAVANCORE-COCHIN 159 considered similar provisions of the Travancore-Cochin Civil Procedure Code and observed at page 161 referring to the similar provisions as under:sub-SEC. 2 of sec. 101 shows that when an order for attachment before judgment passed by a Court is sent to the District Court the latter Court is bound to carry out the order itself or through a Court subordinate to it. The only function of the District Court to which the order of attachment is sent or of a Court subordinate to it to which the District Court might send it is only to carry out the order and complete the formalities of attachment. In other words sec. The only function of the District Court to which the order of attachment is sent or of a Court subordinate to it to which the District Court might send it is only to carry out the order and complete the formalities of attachment. In other words sec. 101 prescribes the proce- dure it does not touch the jurisdiction. THE Full Bench also considered certain cases arising in respect of transfer of decree for execution from one Court to another and the defect in complying with the formalities required to be done in that connection. Those defects in those cases were treated as irregularities. The learned Judges also set out the principles enunciated by the Judicial Committee of the Privy Council with regard to the jurisdiction or the absence thereof and the exercise of jurisdiction. In particular the following observations from PISANI V. ATTORNEY-GENERAL OF GIBRALTER (1874) L. R. 5 P. C. 516 reproduced at page 162 of the Report are quite pertinent:that where there is jurisdiction over the subject matter but non-compliance with the procedure prescribed as essential for the exercise of the jurisdiction the defect might be waived. I am in respectful agreement with the reasoning given by the Full Bench of Travancore-cochin High Court for the view that sec. 136 is only a procedural provision for carrying out the order of attachment made by a competent Court. The first contention of Mr. Oza must therefore fail. .