Ramadhar Singh v. Rajendra Singh — 1991 DIGILAW 63 (PAT)

JUDGMENT S. N. Jha, J. This revision by the applicants is directed against the order by which their objection which was registered as a miscellaneous case under Sections 47 and 151 of the Code of Civil procedure (hereinafter referred to as the ‘Code’) praying for release of the lands in question has been rejected. 2. The material facts giving rise to the present revision are that in Money Suit No. 13 of 1974 instituted by the plaintiff-decree holder-Opposite party in the court of Subordinate Judge, Biharsharif an order of attachment before judgment of the lands in question was passed on 26.3.1974. The attachment order was issued in 27.3.1974 and is said to have been served on 31.3.1974 On 11.10.1974, the suit was decreed ex parte. The decree was sent to the court of Sub ordinate Judge Jehanbad for its execution, since the lands in question are situate within the territorial jurisdiction of the court, giving rise to Execution Case No. 6 of 1976 On 25.6.1976, fresh attachment of the lands was made by the executing Court. The auction sale was held on 19.11.1977 in which the decree holder opposite party himself purchased the lands measuring a bout 5 acres for a sum of Rs. 5, 996, 38 paise. The instant miscellaneous case was filed on 19.11.1977 itself, according to the petitioners at 10:30 A.M. i.e. prior to the aforesaid auction sale. It may be mentioned here that the date of filing of the miscellaneous case has wrongly been stated as 21.11.1977, in the impugned order, as is evident from original record, The said Miscellaneous case, registered as Misc. Case No. 28 of 1977 was later dismissed for default, for the restoration of which Misc, Case No. 29 of 1984 was filed which was dismissed on contest. Misc. Case No. 28 of 1977, however, was ultimately restored by order of this court in Civil Revision No. 1172 of 1986 on 3.3.1987. According to the Opposite Party the sale which had taken place on 19.11.1977 the delivery of possession also was effected on 24.8.1986. Misc. Case No. 28 of 1977, however, was ultimately restored by order of this court in Civil Revision No. 1172 of 1986 on 3.3.1987. According to the Opposite Party the sale which had taken place on 19.11.1977 the delivery of possession also was effected on 24.8.1986. According to the petitioners, however, while issuing notice in the aforesaid Civil Revision No. 1172 of 1986, this Court had stayed delivery of possession on 4.8.1986 but the communication of the said order of stay was delayed by more than twenty days “due to some connivance, manipulation or fault of the office of this Court” reaching Jehanabad Court on 28.8.1986. 3. According to the petitioners, the lands in question had been purchased by them or their father under three registered sale deeds dated 27.4.1974 for a sum of Rs. 47, 009/ in furtherance of earlier deeds of Baibeyana (Agreement to sell) dated 9.2.1974 and 16.2.1974. The aforesaid petition was, accordingly. Filed by them on 19.11.1977, as stated above, alleging inter alia, that there was no due or valid service of processes and the auction sale was illegal and not in good faith. Accordingly a prayer for release of the lands from the attachment and sale was made stating that they had already Purchased the lands in question for valuable consideration. The aforesaid abjection (miscellaneous Case No. 28 of 1977) has been dismissed by the court below by the impuged order and hence this revision. 4. Mr. Bindeshwari Prasad Sinha, learned counsel appearing on behalf of the petitioners initially attempted to challenge the auction sale on the ground that it was violative of the provisions of order 21 rule 72 of the Code. According to him, since the decree holder (Opposite Party) had participated in the auction without obtaining permission of the Court, the purchase was void. This aspect of the matter has been considered by the court below in the impugned order and rejected in view of the Patna amendment in Sub rule (1) of Rule 72 which provides “no holder of a decree in execution of which property he sold shall be precluded from bidding or purchasing the property unless an express order to that effect is made by the Court”. The learned counsel, however. The learned counsel, however. Referring to the provisions of the repeal and saving clause under Section 97 of the amending Act, 104 of 1976 submitted that the aforesaid Patna amendment, being inconsistent with the provision of the amended principal Act, would stand repealed. However, when it was pointed out to the learned counsel that no amendment whatsoever has been made in Rule 72 of order 21 by the aforesaid Amending Act, and, therefore, there was no question of any application of Section 97 or the Patna amendment being in consistent with the provisions of the principal Act, the aforesaid submission was given up. Mr. Lakshman Sharan Sinha appearing on behalf of the opposite party drew my attention to the order passed in this case on 16.9.1987 and submitted that since this very question had been framed for consideration by the Hon’ble Judge while admitting the revision application and since that question, as indicated above, does not arise for consideration at all the revision has to be dismissed. He also submitted that as per the aforesaid order dated 16.9.1987, the petitioners could not be allowed to challenge the validity or otherwise of the attachment of the property. He further submitted that as the property had already been attached on 26.3.1974. i. e. prior to the alleged purchase by the petitioners plaintiffs, the validity of which could not be challenged, the purchases have to be held as void in terms of the provision of Section 64 of the code, as held by the court below, and there is no question of release of the property from attachment at the instance of the petitioners. 5. It is true that while admitting the revision application, it was observed by the Hon’ble Judge that the petitioner shall not be allowed to challenge the validity or otherwise of the said order the petitioners had been disallowed to challenge the validity on the ground of absence of knowledge of the vendor of the petitioners. In other words, even according to that order, it is open to the petitioners to challenge the validity of the attachment on any ground other than want of knowledge about the attachment on the part of the vendor of the petitioners. In other words, even according to that order, it is open to the petitioners to challenge the validity of the attachment on any ground other than want of knowledge about the attachment on the part of the vendor of the petitioners. Otherwise also, in my view, the observations made in the order at the stage of admission are only tentative and provisional in nature and as such I do not agree with the contention of Mr. Lakshman Sharan Sinha that the petitioners are precluded from questioning the validity of the attachment. 6. The impugned attachment of the property before judgment by the Biharsharif Court was challenged by the petitioners on the ground of non-compliance of the provisions of Section 136 of the Code. According to which, where the property sought to be attached, not in execution of decree, is situate outside the Local limits of the jurisdiction of the Court, the court may issue an order of attachment and send the same to the District court within the local jurisdiction of which such property is situate, According to the learned counsel since the property in question admittedly is situate within local limits of the Jehanabad Court which even till today is beyond the limits of the Biharsharif Court, the attachment order should have been sent to the District Judge, Gaya i. e. the District Court, who in his discretion, could have directed the same to the Subordinate Judge, Jehanabd, but as the same was sent direct to the Subordinate Judge, Jehanabad Court, the whole attachment was vitiated and was void. In support of this contention, reliance has been placed on certain decisions, namely, AIR 1937 Mysore 82. On the other hand, on behalf of the opposite Party, it was submitted that the provision as contained in Section 136 relates to rule of procedure only and as such it is only directory and any compliance therewith will be a mere irregularity and would not vitiate the attachment itself, Rwliance was placed on a decision reported in AIR 1962 Trav. Co: 159 (F. B.). 7. The court below has negatived the claim or the petitioners on the ground that the transfer in their favour by registered sale deeds dated 27.4.1974 and 7.9.d1974 was subsequent to attachment before the judgment and therefore, in view of section 64 of the Code, they are void. Co: 159 (F. B.). 7. The court below has negatived the claim or the petitioners on the ground that the transfer in their favour by registered sale deeds dated 27.4.1974 and 7.9.d1974 was subsequent to attachment before the judgment and therefore, in view of section 64 of the Code, they are void. Section 64 reads as follows : “where an attachment has been made, any private transfer or delivery of the property attaches or any interest therein and any payment of the judgment debtor of any debt, dividend or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attachment.” Having regard to the nature of the aforesaid provisions, there can be, no doubt that it operates as a distinct interference with the rights of alienation of properties and, therefore, it should be strictly construed. The Calcutta High Court in the case of Manoharlal Banerjee Vrs. Bengal Immunity Co. Ltd. and another (AIR 1945 Calcutta 308) held : “An attachment to render a subsequent alienation invalid under S. 64 must be made in the manner prescribed by law. Attachment is a real thing distinct and separate from an order of attachment. No property can be declared to be attached unless first the order for attachment has been issued, and secondly in execution of that order the other things prescribed have been done. This principal applies with equal force and precision whether the attachment is in execution of a decree or is an attachment before judgment, and whether the mode and manner in which it is to be effected are those prescribed by the rules of the original side of the High Court.” In that case there had been non-compliance with certain rules of procedure prescribed under the High Court Rules regarding the manner of service of the attachment but still the Court held that the service, such as it was, of the notice of motion, did mot have the effect of an attachment of the property and a mortgage of the property even after the order of attachment was valid against the order of attachment was valid against the claims of the plaintiffs under the decree passed in the suit. Thus violation of even a rule of procedure was held to make section 64 in-application. 8. Thus violation of even a rule of procedure was held to make section 64 in-application. 8. As notice above, a grievance in this case has been made in regard to non-compliance of the provisions of section 136 of the Code. Sub sections (1) and (2) of section 136 of the Code read as follows : “(1) Where an application is made that any person shall be arrested or that any property shall be attached under any provision 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 subordinate to itself and shall inform the Court which issued or made such warrant or order of the arrest or attachment.” While Interpreting the provision of section 136 of the Code, a Division Bench of the Allahabad High Court in the case of Hazi Rahim Bux & sons Vs. Firm Samiullah & sons (AIR 1963 Allahabad 310) after considering those of this Court, held as follows : “A plain reading of these two sub-sections will show that where the property to be attached is situate outside the local limits of the jurisdiction of the Court to which an application for the purpose is made, an order of attachment has to be sent to the District Court within the local limits of whose jurisdiction the property is situate together with the probable amount of the costs of the attachment, On receipt of the order of attachment, the District Court may cause the attachment to be made by its own officers or by a Court subordinate to it. Primarily, therefore, jurisdiction to make an attachment on the authority of a precept received from an outside Court subordinate to the District Court. Primarily, therefore, jurisdiction to make an attachment on the authority of a precept received from an outside Court subordinate to the District Court. A Court subordinate to the District Court may attach the property in compliance with the order of attachment received, but that would be possible only if the District Court requires it to do so. It is the District Court which has jurisdiction to cause the attachment to be made by its own officers or by a Court subordinate to itself. In the absence of a direction by the District Court to that effect, therefore, any attachment, which may be made by a subordinate Court in pursuance of a precept received from a Court in another district would be without jurisdiction and consequently void.” A Bench of this Court in the case of Bansropan Singh and others Vrs. Emperor reported in AIR 1937 patna 603, while considering the aforesaid provision, although in a different context, held that ‘when a court exercises the extraordinary powers conferred on it by section must be strictly observed; and the warrant must be endorsed to the issuing Court, in which the warrant is to be executed. Where therefore a warrant is sent to the Munsif, the warrant is defective.’ It is an admitted position in this case that the order of attachment issued by Biharsharif Court on 27-3-1974 and said to have been served on the vendors of the petitioners on 31-3-1974 was not sent to the District Judge, Gaya within whose territorial jurisdiction, the lands in question are situate and rather was sent direct to the court of Sub Judge at Jehanabad where the Nazir issued the processes through the Court’s peon, without any order of the District Judge in that regard. In view of the admitted position on facts, it has to be held that there has been non-compliance with the provisions of section 136 and, thus in view of the judgments cited above, by reasons of the aforesaid defect touching the jurisdiction of the court concerned, it has to be further held that the provisions of section 64 cannot be applied on the facts of this case. 9. It would be appropriate at this stage to notice another submission made on behalf of the petitioners which may be said to have some bearing on the rights of the petitioners. 9. It would be appropriate at this stage to notice another submission made on behalf of the petitioners which may be said to have some bearing on the rights of the petitioners. As has been notice above, agreement of sale (Baibiyana) had been executed on 9-2-1974 and 16-2-1974. On the strength of several decision of various High Court, it was submitted that the parties (petitioners and their vendors) having entered into agreement of sale prior to the date of alleged attachment, only because the formal sale deeds were executed later, their claims in the properties could not be ignored. Reliance has been placed on a decision in the case of Athinarayana Kinar and another Vrs. V. Subramania Ayyar reported in AIR 1942 Madras 67. The relevant passages from the aforesaid judgment may be quoted : “Though a contract to sell does not, having regard to the terms of S. 54 of the Act, create any interest in or charge on the property, it does give rise to an obligation which limits the right of the judgment debtor and the attachment of the right, title and interest of the judgment-debtor is subject to any such limitation by which the judgment debtor was bound. Therefore, where subsequent to a contract to sell certain property, it is attached in execution of a decree, the attachment creditor to sell. The right of the judgment-debtor in the property is on the date of the attachment qualified by the obligation incurred by him under the earlier contract to sell and attaching creditor cannot claim to ignore that obligation and proceed to bring the property to sale as it remained the absolute property of the judgment debtor. And if the attachment is subject to the obligation under the previous contract, the sale in pursuance of the contract will not be a transfer contrary to the attachment within the meaning of section 64, Civil P.C.” In the case of Mundrika Singh and others Vrs. And if the attachment is subject to the obligation under the previous contract, the sale in pursuance of the contract will not be a transfer contrary to the attachment within the meaning of section 64, Civil P.C.” In the case of Mundrika Singh and others Vrs. Nand Lal Singh and others reported in AIR 1941 patna 204, this Court while considering the matter in the context of application under order X XI Rule 89, a provision similar in nature, stated :- “where attachment property has been sold by auction and a third person within 30 days makes an application under O. 21, R. 89 on the strength of a contract of sale executed in his favour by the judgment-debtor fore auction sale, he should be allowed to do so as he has locus standi to make an application under O. 21 R. 89.” However, in view of my finding above regarding the non-compliance of section 136 and its effects on the rights of the petitioners vis section 64 of the Code, it is not necessary for me in this case to consider the relevancy of this argument. 10. An important aspect which deserves consideration and on the basis of which also this revision is fit to be allowed, may now be notice. As indicated above, the property measures about 5 acres of land. According to the petitioners, they purchased the property for a sum of Rs. 47,000/ in the year 1947. How could it be, it was argued, that a property which was considered to be worth Rs. 47,000/- in 1974 be sold for a sum of Rs. 5,996/- and odd in the year 1977. Undisputedly, the property in question is agricultural land and the same has been purchased by the decree holder himself. This Court has consistently held that where the property is sold for a grossly inadequate price and purchased by the decree holder, the auction faith and in all cases where the amount is found to be shockingly low, this Court has interfered to undo the wrong. Reference, in this connection, may be made to a Bench decision in the case of Chandra Bhukhan and others Vs. Ram Dutta Mahto and others (AIR 1947 patna 139). 11. Reference, in this connection, may be made to a Bench decision in the case of Chandra Bhukhan and others Vs. Ram Dutta Mahto and others (AIR 1947 patna 139). 11. Apart from what has been stated above, another aspect which should not go unnoticed in this judgment is that, whatever be the legal position regarding the orders of attachment, one fact that looms large is that the proceeding in the suit and even thereafter until 19-11-1977 was held ex parte behind the back of judgment-debtors i. e. vendors of the petitioners on the assumption that their Petition in question had been filed on 21-11-1977 i.e. after the date of auction sale is also not borne out by the records. 12. The cumulative effect of all these discussions is that the impugned order of the court below rejecting the prayer of the petitioners for release of the lands in question cannot be said to be a just, correct and proper order. I according, hold that court below has failed to exercise its jurisdiction vested in it by law. 13. In the result, this revision is allowed and the impugned order dated 18-8-1987 is set aside. There shall be no order as to costs. Revision allowed.