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Galabbhai Lallubhai Vs. Kika Jivan - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 197 of 1927
Judge
Reported in(1929)31BOMLR1111
AppellantGalabbhai Lallubhai
RespondentKika Jivan
DispositionAppeal dismissed
Excerpt:
.....of 1908), section 64, order xxi, rule 54-decree- execution-order for attachment-levy of attachment-sale of property between the dales of the order and the levy- vendee knowing of the order-sale not voidable.;a sale of his property by the judgment debtor, after issue of an order of attachment with notice, but before the actual prohibition and proclamation, under order xxi, rule 54, is not voidable at the option of the decree-holder, under section 64 of the civil procedure code, 1908, although the vendee is apprized of the issue of the order.;sinnappan v. arunachalam pillai (1919) i.l.r. 42 mad. 844, f.b.; mula ram v. jiwanda ram (1923) i.l.r. 4 lah. 211; and muthiah chetti v. palaniappa chetti (1928) 30 bom. l.r. 1353, 1357 followed. - - 2. both the lower courts held that the respondent..........16, 1923, and obtained an order of attachment with notice under order xxi, rule 54, returnable on june 29. on june 19, 1923, the judgment-debtor sold the property to the defend respondent kika, and the actual prohibition upon the judgment-debtor and proclamation were effected on june 22, 1923. the question in this appeal is whether the sale to the respondent by the judgment-debtor on june 19, 1928, after the order of attachment but before the actual prohibition and proclamation under order xxi, rule 54, is voidable at the option of the appellant under section 64 of the code of civil procedure; secondly, if not, whether it can be set aside under section 53 of the transfer of property act.2. both the lower courts held that the respondent had been negotiating for the purchase of the land.....
Judgment:

Madgavkar, J.

1. The plaintiff-appellant obtained a decree against one Pema Parbhu on September 21, 1920. The plaintiff applied in execution on January 16, 1923, and obtained an order of attachment with notice under Order XXI, Rule 54, returnable on June 29. On June 19, 1923, the judgment-debtor sold the property to the defend respondent Kika, and the actual prohibition upon the judgment-debtor and proclamation were effected on June 22, 1923. The question in this appeal is whether the sale to the respondent by the judgment-debtor on June 19, 1928, after the order of attachment but before the actual prohibition and proclamation under Order XXI, Rule 54, is voidable at the option of the appellant under Section 64 of the Code of Civil Procedure; secondly, if not, whether it can be set aside under Section 53 of the Transfer of Property Act.

2. Both the lower Courts held that the respondent had been negotiating for the purchase of the land some time prior to the application for execution, and had paid a proper purchase price in good faith, although the appellant decree-holder informed him by letter on June 17 of the order for attachment. They upheld the sale and dismissed the application for execution chiefly on the strength of Sinnappan v. Arunachalam Pillai I.L.R.(1919) Mad. 844.

3. It is argued for the appellant that in the Madras case knowledge of the order for attachment on the part of the purchaser was not proved as it has been held proved in the present case, and the object of prohibition and promulgation under Order XXI, Rule 54, being notice, and that object being served in the present case by the letter of the appellant, the latter is entitled to set aside the sale under Section 64 of the Code of Civil Procedure, or at least under Section 53 of the Transfer of Property Act. It is contended for the respondent that an order for attachment is only the beginning and not the end of the attachment and the attachment is not complete until prohibition and proclamation under Order XXI, Rule 54, Section 64, therefore, has no application : on the facts as held by the lower Courts, the plaintiff-respondent is a bona fide purchaser for value, and the sale cannot be set aside under Section 53 of the Transfer of Property Act. In any case as the notice under Order XXI, Rule 22, on the judgmentdebtor was not returnable till June 29, 1923, no attachment should have issued until he appeared on this date and showed cause and as in the case of a sale without notice, such attachment is held to be invalid by Parashram v. Bahnukwnd I.L.R(1908) . 32 Bom. 572 and Gopal Chunder Chatterjee v. Gunamoni Dati I.L.R. (1892) Cal. 370 .

4. Attachment, in my opinion, is not complete until prohibition and proclamation under Order XXI, Rule 54. It can hardly be said that immovable property is attached on the mere order of attachment until that order is followed up in the manner laid down in Order XXI, Rule 54. The view of the Full Bench of the Madras High Court in Sinnappan v. Arunachalam Pillai is followed in Mula Ram v. Jiwanda Ram I.L.R(1923) . Lah. 211 and derives support from the observations of their Lordships of the Privy Council in Muthiah Ohstti v. Palaniappa Chetti : (1928)30BOMLR1353 Their Lord-ships observe (p. 1357) :-.under the Civil Procedure Code in India the most anxious provisions are enacted in order to prevent a mere order of a Court from effecting attachment, and plainly indicating that the attachment itself is something separate from the mere order, and is something which is to be done and effected before attachment can be declared to have been accomplished.... 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 by the rules in the Code have been done.

Though the question before their Lordships was in regard to the application of Section 11 of the Indian Limitation Act, their observations apply in the present case.

5. In regard to the contention for the appellant that be informed the respondent by letter before the date of the sale after order, that fact does not suffice to complete and convert the order for attachment into a legal attachment. In the absence of a legal attachment Section 64 has no application. It is not, therefore, necessary to consider the argumentum ab inconvenienti. But if the Courts have to go into the knowledge, actual or probable, of the parties instead of the prohibition and the proclamation by themselves laid down by Order XXI, Rule 54, the proceedings in execution, sufficiently protracted and difficult under the law, would become almost impossible. In my opinion, the appellant, therefore, is not entitled to the benefit of Section 64 merely by reason of his letter to the respondent prior to the sale being taken by the latter from the judgment-debtor. In this view, it is not necessary for consider the alternative argument for the respondent attacking the validity of the attachment before the date fixed for the return of the notice under Order XXI, Rule 22, The authorities cited by him are both cases of sale in the absence of notice, and it does not follow that an order for attachment is equally voidable.

6. With regard to Article 53, on the finding of the lower Courts that the respondent had been negotiating for the purchase of the land for some considerable time before, and that he paid an adequate price, he must be taken to be a transferee in good faith. There is no sufficient reason to differ from the view of the lower Courts that the appellant has failed to prove the necessary ingredients under Section 53 to avoid the sale in favour of the respondent.

7. The appeal fails, and is dismissed with costs.


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