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Shidramappa Ayyappagouda Patil Vs. Parasuramasing Karaksing Rajput and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtKarnataka High Court
Decided On
Case NumberEx. Second Appeal No. 5 of 1970
Judge
Reported inAIR1973Kant82; AIR1973Mys82
ActsCode of Civil Procedure (CPC) , 1908 - Sections 136
AppellantShidramappa Ayyappagouda Patil
RespondentParasuramasing Karaksing Rajput and anr.
Appellant AdvocateC.M. Desai, Adv.
Respondent AdvocateS.D. Chattre, Adv.
Disposition Appeal allowed
Excerpt:
.....of certiorari. - 1 that failure to abide strictly by the provisions of section 136 of the code of civil procedure cannot vitiate the attachment made by the court within whose jurisdiction the property ordered to be attached is situate. he submitted that the jurisdiction to make the order of attachment as well as to raise the same vest only with the court where the suit was instituted though the property sought to be attached was situate outside the local limits of that court. sri chattre's submission is that the matter pertaining to giving effect to the order of attachment pertains only to the procedural aspect whereas essential matters pertaining to the passing of the order of attachment as well as the raising of the same vest only with the court where the suit is instituted. the view..........by his order dated the 9th of august 1954 as per the provisions of section 136 of the code of civil procedure. but it appears that the procedure prescribed under section 136 of the code of civil procedure was not strictly followed in this case and that the civil judge junior division, bijapur did not send the order of attachment made by him to send the order of attachment made by him to the district court, bijapur as required by section 136 of the code of civil procedure. instead, the learned civil judge junior division, bijapur sent the order of attachment for being given effect to directly to the court of the civil judge, junior division muddebihal. it appears that the learned civil judge. junior division, muddebihal within whose jurisdiction the property was situate, made the.....
Judgment:

V.S. Malimath, J.

1. This appeal is by one Shidramappa Ayyappagouda Patil against the decree passed by the Civil Judge at Bijapur in R. A. No. 151 of 1966 confirming the decree passed by the Munsiff at Muddebihal in Darkhast No. 110 of 1961. One Parasuramasing Karaksing Raiput, respondent No. 1 herein instituted a Civil Suit No. 166 of 1954 to recover a certain sum of money from respondent No. 2 Chanbasappa Subbappa Patil. That suit was instituted in the Court of the Civil Judge Junior Division. Bijapur. Respondent No. 1 obtained an order of attachment before judgment in respect of the property in question from the Civil Judge Junior Division. Bijapur on the 9th of August, 1954. As the property belonging to respondent No. 2 was situate within the jurisdiction of the Court of the Civil Judge Junior Division. Muddebihal. appropriate steps had to be taken for effecting the attachment ordered by the Civil Judge Junior Division. Bijapur by his order dated the 9th of August 1954 as per the provisions of Section 136 of the Code of Civil Procedure.

But it appears that the procedure prescribed under Section 136 of the Code of Civil Procedure was not strictly followed in this case and that the Civil Judge Junior Division, Bijapur did not send the order of attachment made by him to send the order of attachment made by him to the District Court, Bijapur as required by Section 136 of the Code of Civil Procedure. Instead, the learned Civil Judge Junior Division, Bijapur sent the order of attachment for being given effect to directly to the Court of the Civil Judge, Junior Division Muddebihal. It appears that the learned Civil Judge. Junior Division, Muddebihal within whose jurisdiction the property was situate, made the attachment as per the order of attachment dated the 9th of August, 1954 passed by the Civil Judge, Junior Division, Bijapur.

After obtaining the decree, respondent No. 1 sought to brine the property attached to sale in execution of the decree obtained by him. The decree passed by the Court at Bijapur was got transferred to the Court of the Munsiff at Muddebihal for the purpose of execution. During the pendency of the execution proceedings, the present appellant Shidramappa Ayyappagouda Patil submitted a petition to the executing Court and inter alia contended that the decree-holder is not entitled to proceed against the property in question, as the suit property does not belong to the judgment-debtor but belongs to him. His contention was that he purchased the property in question under a sale deed dated the 21st day of March. 1959 executed by the judgment-debtor in his favour.

But it was contended on behalf of the decree-holder that the sale in favour of Shidramappa Ayyappagouda Patil is void under Section 64 of the Code of Civil Procedure as the same was effected after the property was attached at the instance of the decree-holder Parasuram singih Karaksingh Rajput. the original plaintiff. The appellant Shidramappa Ayyappagouda Patil contended that the decree-holder cannot place any reliance on Section 64 of the Code of Civil Procedure, as there was no valid attachment of the property on the date on which he purchased the same, namely, on the 21st of March, 1959.

2. The executing Court overruled the objections of the appellant and directed the execution to proceed. The said decision has been affirmed by the learned Civil Judge. Bijapur in R. A. No. 151 of 1966. Hence this Execution second appeal by Shidramappa Ayyappagouda Patil. Judgment debtor No. 2.

3. The only point for consideration in the appeal is, as to whether there was a valid and subsisting attachment of the property in question on 21-3-1959. the date on which the appellant purchased the property in question from respondent No. 2. If there was a valid and subsisting attachment on that date as contended by respondent No. 1. it is obvious that the appellant did not acquire any title to the property in question as the sale in his favour would be void under Section 64 of the Code of Civil Procedure. If there was no valid and subsisting attachment as contended by respondent No. 1 as on the 21st of March 1959. respondent No. 1 would be entitled to execute the decree and proceed against the property in question on the footing that the sale in favour of the appellant is void under Section 64 of the Code of Civil Procedure.

4. The attachment depended upon by the decree-holder in this case is one made under Order 38, Rule 5 of the Code of Civil Procedure. As already mentioned, it is the court of the Civil Judge Junior Division. Bijapur that passed the order on the 9th of August. 1954 directing the attachment before judgment of the property in question which was situate not within the local jurisdiction of this Court but within the local jurisdiction of another Court in the same District, namely, within the territorial jurisdiction of the Court of the Civil Judge Junior Division. Muddebihal. In order to secure en attachment before judgment of the property, it is not enough that the plaintiff secures an order from the Court for attachment under Order 38. Rule 5 of the Code of Civil Procedure. That order has to be given effect to as provided by Order 38. Rule 7 of the Code of Civil Procedure which states that 'save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree'. The procedure for attachment of property in the execution of a decree is provided under Order 21. Rule 54 of the Code of Civil Procedure which reads as follows:--

'(1) Where the property is immovable, the attachment shall be made by an order of prohibiting the judgment-debtor from 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, and where the property is situated within the limits of a Municipality or other local authority also in the principal office of the said Municipality or the local authority.'

The attachment order under Order 38, E. 5 of the Code of Civil Procedure will therefore become complete only when the same is given effect to under Order 38, Rule 7 of the Civil P. C. If the property is situate within the jurisdiction of the Court which made the order of attachment under Order 38. Rule 5, it is the same court that would give effect to that order under Order 38, Rule 7. But if the property is situate within the jurisdiction of a court other than the court making an order of attachment the order of attachment can be given effect to and completed only by following the procedure prescribed under Section 136 of the Code of Civil Procedure. Section 136 of the Code of Civil Procedure may be usefully extracted, which reads as follows:--

'(1) Where en 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.

(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.'

5. Though the side note of Section 136 of the Code of Civil Procedure, prescribes the procedure where a person to be arrested or property to be attached is outside the District as pointed out by Sri Chattre. learned counsel for respondent No. 1. it is clear from the reading of the section that the procedure prescribed in Section 136 of the Code of Civil Procedure has to be followed in all cases where the property sought to be attached is situate outside the local limits of the jurisdiction of the Court which made the order of attachment If the property is situate out side the local limits of the jurisdiction of the Court which made the order of attachment, that Court is required to send to the District Court within the local limits of whose jurisdiction the property is situate, a copy of the order of attachment together with the probable amount of costs of attachment. On receipt of the same, the District Court can cause the attachment to be made by its Officers or by a Court subordinate to itself. It is thereafter the duty of the District Court to inform the Court which made the order of attachment about the steps taken for giving effect to the order of attachment.

It was urged by Sri Chattre, learned counsel for respondent No. 1 that failure to abide strictly by the provisions of Section 136 of the Code of Civil Procedure cannot vitiate the attachment made by the Court within whose jurisdiction the property ordered to be attached is situate. He submitted that the jurisdiction to make the order of attachment as well as to raise the same vest only with the Court where the suit was instituted though the property sought to be attached was situate outside the local limits of that Court. He. therefore, submitted that the Court within whose jurisdiction the property sought to be attached is situate only gives effect to the order of attachment made by a competent Court. In other words. Sri Chattre's submission is that the matter pertaining to giving effect to the order of attachment Pertains only to the procedural aspect whereas essential matters pertaining to the passing of the order of attachment as well as the raising of the same vest only with the Court where the suit is instituted.

6. I find it difficult to accept the contention of Sri Chattre that Section 136 of the Code of Civil Procedure only deals with the procedural matter and that therefore any breach of the same does not render the attachment incomplete or invalid. In my opinion, in order to complete an attachment which is sought by a party, the giving effect to the order of attachment is as important as the making of an order of attachment. The giving effect of the order of attachment under Section 136 of the Code of Civil Procedure, is to give notice to the public at large that the property has been attached and that anyone who deals with the property, does so at his own risk.

It is therefore, that the giving effect to the order of attachment under Order 21. Rule 54 of the Code of Civil Procedure is as much important as the making of the order of attachment under Order 38, Rule 5. But for the provisions of Section 136, the Court within whose jurisdiction the property is situate would not have any competence to effect the attachment under Order 21, Rule 54 of the Code of Civil Procedure in pursuance of an order made by another Court. The Court which makes the order of attachment would ordinarily have jurisdiction and competence to give effect to the same under Order 21. Rule 54 of the Code of Civil Procedure. It cannot give effect to the same if the property is not situate within its local jurisdiction.

Similarly, the Court within whose 5urisdiction the property is situate will have ordinarily no competence to give effect to an order of attachment unless it itself has in a suit pending before it made an order of attachment. The court within whose jurisdiction the property is situate will therefore acquire jurisdiction to effect attachment ordered by another Court by virtue of the provisions of Section 136 of the Code of Civil Procedure. I am. therefore, of the opinion that Section 136 of the Code of Civil Procedure is one which really confers jurisdiction on a Court which has not made an order of attachment, to give effect to the order of attachment made by another Court, Non-compliance with the provisions of Section 136 of the Code of Civil Procedure would therefore, vitiate the attachment effected and render the same invalid in law.

7. The Court which makes an order of attachment in respect of a property situate outside its jurisdiction is required by Section 136 of ,the Code of Civil Procedure to send the order of attachment and the costs along with it for giving effect to the same to the District Court within whose jurisdiction the property is situate. Once the order of attachment and the costs are received by the District Court, the District Court can cause attachment to be made by its own officers or by a court subordinate to itself. The courts subordinate to the District Court will not get jurisdiction to make the attachment ordered by another court unless the District Court, to which it is subordinate, directs it to give effect to the same under Section 136 of the Code of Civil Procedure. It is the order of the District Court to which it is subordinate that gives it jurisdiction to give effect to the order of attachment made by another Court.

8. In this case the Court of the Civil Judge Junior Division, Bijapur which made the order of attachment under Order 38, Rule 5 of the Code of Civil Procedure, did not as required by clause (1) of Section 136, forward the copy of the order and the costs for making the attachment to the District Court at Bijapur. Instead, it directly forwarded the same to the Court of the Civil Judge Junior Division, Muddebihal within whose jurisdiction the property is situate in order to make the attachment. The Court of the Civil Judge Junior Division. Muddebihal made the attachment as per the provisions of Order XXI, Rule 54 of the Code of Civil Procedure not on the basis of any order made by the District Court as required under Section 136(1) but on the basis of a request directly made by another Court for that purpose. As the Court of the Civil Judge Junior Division. Muddebihal made the attachment ordered by the Court of the Civil Judge. Junior Division, Bijapur without itself being directed to do so by the District Court of Bijapur, the attachment made by the Court of the Civil Judge. Junior Division, Muddebihal is invalid and inoperative.

9. The consensus of judicial opinion in India in this behalf appears to be in consonance with the view which I have taken, as can be seen from the decisions of the various High Courts, namely. (Bhagwan Das Pribhdas v. Santokh Singh Saran Singh); : AIR1963All320 (Haji Rahim Bux & Sons v. Firm Samiullah and Sons); AIR 1951 Madh Bha 82 (Rame-shwaradayal Ramswaroop v. Bheemsen Dulchand) and AIR 1937 Pat 603; (Bansropan Singh v. Emperor). Sri Chattre, the learned counsel for respondent No. 1 has pressed into service the decision of the High Court of Travancore-Cochin in AIR 1952 Trav Co 159 (FB) between Mariamma Mathew v. Ittop Poulo and the decision of the Kerala High Court in : AIR1963Ker193 between Mookan Ouseph Thomakutty v. Puramundekat Padinjare Madathil Nanu which followed the earlier decision of the Travancore-Cochin High Court. The view taken by the High Court of Travancore-Cochin as well as the Kerala High Court in the aforesaid two decisions is that the giving effect to the order of attachment is only a procedural matter and that therefore Section 136 of the Code of Civil Procedure should not be regarded as a provision conferring jurisdiction on another Court in giving effect to the order of attachment. I have already discussed the relevant provisions of the Code of Civil Procedure and recorded my reasons to show that Section 136 of the Code of Civil Procedure is one which provided for conferring jurisdiction on Court to give effect to the order of attachment made by another Court which jurisdiction it does not otherwise possess. With great respect, I find unable to agree with the view taken in those two decisions that Section 136 of the Code of Civil Procedure deals only with the procedural aspect and that any irregularity in following the same does not vitiate the attachment made.

10. For the reasons stated above, this appeal is allowed and the judgments end decrees passed by the Courts below ere set aside. As the attachment depended upon by respondent No. 1 is invalid and inoperative in law, the sale in favour of the appellant brought about by the sale deed dated 21st March 1959 is not void under Section 64 of the Code of Civil Procedure. Respondent No. 1 is therefore not entitled to proceed against the property purchased by the appellant. Hence the execution petition filed by respondent No. 1 has to be dismissed. It is accordingly dismissed. In the circumstances of the case, parties shall bear their own costs.


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