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Someshwar Rajaram Bhat Vs. Manilal Bhailal Patel - Court Judgment

LegalCrystal Citation
Decided On
Case NumberCivil Revision Application No. 179 of 1930
Reported inAIR1932Bom210; (1932)34BOMLR206; 137Ind.Cas.603
AppellantSomeshwar Rajaram Bhat
RespondentManilal Bhailal Patel
.....58-money decree-attachment before judgment-attachment of undivided share of a co-parcener in one property-suit for partition-preliminary decree for partition- attachment of the share in all properties-final partition-application by other co parceners to exempt their properties from attachment-cognizance of events happening since attachment.; during the pendency of a partition suit between three branches of a joint hindu family, a creditor of one of the co-parceners in one branch obtained a money decree and secured attachment before judgment on one of the lots under partition. after a preliminary decree was passed in the partition suit, the judgment-creditor under the money decree obtained attachment of the undivided share of his debtor in all the lots, and had it proclaimed for bale...........interest in the property we are now concerned.2. one of the coparceners out of the family filed a partition-suit in august 1926. a preliminary decree was passed in the suit on september 14, 1927. a final decree was passed on january 18, 1929. as a result of the final decree, six definitely statedlots went to the branch of someshwar jivram and nine lots went to the branch of someshwar rajaram. the third branch got the rest of the lots. there were thirty six lots in all in the suit.3. one manilal, the opponent to the present petition, had obtained a money decree against trambaklal sometime in april 1927. prior to judgment, manilal had secured attachment of trambaklal's interest in one out of the thirty-six lots, and subsequent to the decree ha got an order for attachment in darkhast.....

Shingne, J.

1. These are two companion applications arising out of the following facts, A joint Hindu family consisting of three branches owned certain immoveable property. One of the three branches is represented now bySomeshwar Jivram, the other by Someshwar Rajaram, and the third haunch has two sub-branches, one of which is represented by Chunilal, the junior brother of one Trambaklal, who was the judgment-debtor, with the sale of whose proprietary interest in the property we are now concerned.

2. One of the coparceners out of the family filed a partition-suit in August 1926. A preliminary decree was passed in the suit on September 14, 1927. A final decree was passed on January 18, 1929. As a result of the final decree, six definitely statedlots went to the branch of Someshwar Jivram and nine lots went to the branch of Someshwar Rajaram. The third branch got the rest of the lots. There were thirty six lots in all in the suit.

3. One Manilal, the opponent to the present petition, had obtained a money decree against Trambaklal sometime in April 1927. Prior to judgment, Manilal had secured attachment of Trambaklal's interest in one out of the thirty-six lots, and subsequent to the decree ha got an order for attachment in darkhast proceedings, so that in the end he secured attachment of the undivided interest of his judgment-debtor, Trambaklal, in all the lots. In course of time, the Court ordered the sale of the undivided one-ninth share of Trambaklal in almost all the lots.

4. Though the sale was ordered as far as January 1928, nothing could be done for reasons which need not be stated here. The subsequent death of Trambaklal led to the prolongation of the proceedings of sale, and in the meantime the final decree having been passed, as stated above, on January 18, 1929, the two Someshwars representing the first and the second branch filed applications to raise the attachment from the lots that had fallen to their shares.

5. The decree holder objected, and on the applications coming on for hearing, the learned Subordinate Judge concluded that on the date of the attachments the two Someshwars were not in possession on their own account of the specific lots which they put forth as having been allotted to them in the final decree in the partition suit. The learned Subordinate Judge further observed that as only the undivided interest of the judgment-debtor existing at the time of the attachment was attached, the applications under Order XXI, Rule 58, were not maintainable. The applications, therefore, came to be dismissed.

6. The point to be considered is whether it was correct to hold that the applications were not entertainable. No doubt, in favour of the judgment-creditor is the language of Rules 59 to 61 which requires the consideration of the question whether at the date of the attachment the Claimant or the judgment debtor had some interest in, or was possessed of, the property attached,

7. I do fully appreciate that one of the principles of construction of a statute is that it must be construed literally, and that Courts of law must generally take it absolutely for granted that the legislature has said what it meant and meant what it has staid. Bat it is also to be noted that undue strictness in construing a provision in a statute may sometimes sacrifice the true intention of the legislature and the rational development of the law to the tyranny of words. (VideSalmond's Jurisprudence, 7th Edition, pages 182-133). The true principle of construing a statute is that we ought to give to an Act of the legislature the plain, fair, literal meaning of its words where we do not see from its scope that such meaning would be inconsistent or would lead to manifold injustice and that the true meaning of any provision in an Act will have to be gathered by comparing it with the other parts of the same Act and that every clause of the Act should be construed with reference to the context, so far as possible, so as to make a consistent enactment of the whole Act relating to the subject matter. (See Maxwell on the Interpretation of Statutes, 7th Edition, pp. 2-3 and pp. 19-20).

8. Keeping this principle in view, I proceed to consider how the situation stands in this case, having regard to the history of the execution proceedings from the date of the attachment and also to the facts that happened in the partition suit.

9. No doubt, as stated in the summary of facts stated above, what was attached was the undivided interest of the judgment debtor Trambaklal in the lots as mentioned above and substantially the same was ordered to be sold.

10. Section 6 of the Civil Procedure Code enacts that-

Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein ... contrary to such attachment, shall be void as against all claims enforceable under the attachment.

11. In this case, there has been no private transfer or delivery of the attached property. What has happened is that as a result of the final decree of a Court of competent jurisdiction, the unascertained share of Trambaklal as a co-parcener has come to be definite and ascertained. As observed by Lord Hobhouse in Moti Lal v. Karrabuldin I.L.R. (1897) Cal. 179 attachment only prevents alienation, it does not confer title and, therefore, to my mind, having regard to the facts that have occurred in the partition suit,Trambaklal's share could not be ordered to be sold in the manner in which it was done, but the proper course was, having regard to the terms of Rule 66 of Order XXI, to take notice of the events in the partition, suit and proclaim for sale the ascertained interest of Trambaklal in the lots allotted to the third branch. I do not think that the language of rules 59 to 63 would prevent a Court of law from taking notice of facts as they occurred in the partition suit. It will certainly be wrong-it will indeed be a dereliction on the part of a Court-to screen the reality and to proclaim for sale what at the date of the proclamation was clearly wanting in reality. It is a function of a Court of law to properly adjust the various remedies that are in its power and to apply its power to advancement of substantial justice. Keeping this principle in view, it will not be proper to direct the sale of the property in the way in which it was attached. Such a course will not only lead to the sale of other persons' property but will also tend to unnecessarily promote the course of further litigation and to practically deny to the parties to the partition suit the benefit of the final decree. It is also possible that the decree-holder may suffer, if the sale were to be made on the line adopted by the lower Court. A decree-holder is likely to get the benefit of a higher bid if the property to be sold is definitely described in the proclamation of sale than when it is indefinitely described. It was contended that the decree-holder in this case was not a party to the partition suit, but I do not think that he can succeed in disregarding the result of the suit, He cannot claim higher rights than those which belong to his judgment-debtor. So far as I gather, there is no allegation that the partition decree was got by fraud or collusion.

12. Rule 64 of Order XXI enacts: 'Any Court executing a decree may order that any property attached by it and liable to sale,... shall besold.' Rule 66 states that the proclamation of sale should state as accurately and as fairly as possible the property to be sold, and it should, among other things, contain every thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property. With all respect, I think that the facts that occurred as the result of the final decree for partition were indeed things of a material nature for the purchaser to know. It will be useful to quote the following observations of Lord Macnaghten in the Privy Council case of Kala Mea v. Harperink I.L.R. (1808) Cal. 323 Lord Macnaghten observes (p. 334) :-

It has been laid down again and again that in sales under the direction of the Court it is incumbent on the Court to be scrupulous in the extreme, The Court, it is said, must at any rate not fall below the standard of honesty -which is exacts from those on whom it has topass judgment. The slightest suspicion of trickery or unfairness must affect the honour of the Court and impair its usefulness. It would be disastrous, it would be absolutely shocking, if the Court were to enforce against a purchaser misled by its duly accredited agents a bargain so illusory and sounconscientious as this.

13. Rule 94 of Order XXI enacts :-

Where a sale of immoveable property has become absolute, the Court shall grant a certificate specifying the property sold and the name of the person who at the time of sale is declared be the purchaser...

14. The certificate of sale is the title deed of the purchaser passed under the supervision of the Court and it will certainly be incumbent on a Court of law to see that the certificate of sale granted by it does not furnish material for a fresh litigation.

15. It has been held that when a member of a joint Hindu family mortgages his undivided shire in the joint family, the mortgagee-creditor is entitled to follow only such property which falls to his mortgagor's share in a partition that subsequently takes place. See, for instance, Hem Chundar Ghose v. Thako Moni Debi I.L.R. (1893) Cal. 533 In the ease of Venkatasami Naidu v. Gurusami Aiyar (1919) 38 M.L.J. 441 two creditors claiming under different claims had an attachment on the same property of the same judgment-debtor before judgment. They subsequently got decrees on their claims One of the decree-holders obtained sale of the property through Court in execution of his own decree and himself purchased the property. The other decree-holder subsequently applied for the sale of the same property in execution of his decree. It was held that in spite of what was attached in execution of the decree of this latter decree-holder, the ownership in the property had passed to the decree-holder who had got the property sold in execution of his decree, so that the judgment-debtor had no interest left in him. It was observed as follows (p. 442) :-

It is well established that an attachment confers no interest in the property which is custodia legis and the effect of attachment is to render any private alienation void as against all claims enforceable under the attachment,.. The attachment doesnot prevent a transfer of the property under an order of Court... The ownership of theproperty passed to the appellant from the moment that the sale was knocked down to him, and the judgment-debtor retained no interest in it which can be attached or sold.

16. Towards the end of the judgment in that case, it was stated (p. 443):-

It has been argued that the provisions of Order 21, Rules 58 to 63 apply to this case, and the heading of the appellants' application referred to them ; but we do not think that they apply, because the ground of an application under them is that the property in question is not liable to attachment. In the present case the respondent was originally entitled to attach theproperty of his debtor but he is not entitled to proceed to sale because the Court has already disposed of the property.

17. It is thus clear that rules 58 to 63 of Order XXI must be road as a part of the whole scheme laid down in the Civil Procedure Code on the point of attachment and sale, and when the matter is thus considered, it is clear that the decision of the lower Court in refusing to recognise the events that occurred at the partition suit was wrong.

18. The question is whether in revision the High Court can interfere. As laid down in Bombay Steam Navigation Co. v. Vasudev1927 20 Bom.L.R. 551 the power of High Court in revision is wide and large. This is, in my opinion, preeminently a case in which I should interfere without hesitation, because to allow the view of the lower Court to prevail might well result in confusion and will subvert the result of a past litigation. The only point to be considered is whether the applications should be sent back to be considered on merits or some other order should be passed.

19. I do not think that any useful purpose will now be served by asking the lower Court to consider the merits of the applications. It is sufficient to direct that the property that should be proclaimed for sale should be the interest of the deceased judgment-debtor which in the partition suit had been allotted to his share as the result of the final decree,

20. I, therefore, make the rule absolute and direct as stated above. I think this is a case in which each party should bear his own costs of the applications as also of the proceedings in applications Nos. 21 and 22 of 1930 in the lower Court. Rules in the stay applications are made absolute. No order as to costs therein.

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