H.B. Datar, J.
1. Appellant is the plaintiff. She instituted on the 19th of January, 1961, Original Suit No. 4 of 1961 before the Court of the Subordinate Judge at Mysore, for recovery of possession of the plaint schedule properties; for recovery of manse profits of Rs. 4,500/-; and also claimed other reliefs. The case of the plaintiff is that the suit schedule properties originally belonged to the ownership of one C. Raghavendra Rao. Plaintiff i.e., the wife of one V.S. Rajaram Setty filed a suit for recovery of certain monies due to her from C. Raghavendra Rao. In that suit, the case of the plaintiff is that the properties in question were attached before judgment on the 4th of February, 1954. Thereafter, there was a compromise arrived at between the parties and a decree for Rs. 6,727/- with costs and interest was passed. A period of six months was also granted to C. Raghavendra Rao for payment, but he failed to pay the same, proceedings were taken out in execution No. 25 of 1956 and the lands in question were purchased by the plaintiff through her husband on 21st January, 1954. Exhibit P.4 is the sale certificate. The case of the plaintiff is that the plaintiff got possession of the lands in pursuance of the sale, but defendant wrongfully dispossessed her and in spite of notice defendant having refused to deliver possession, the plaintiff was compelled to institute the suit.
2. Defendant denied the allegations made by the plaintiff and contended that there was no attachment at all, and it was necessary for the plaintiff to prove: (1) that the procedure prescribed for attachment before judgment under Order XXXVIII, Rule 7, Civil P. C. was followed: (2) that the Court has ordered the issue of all the prescribed notices and warrants in connection with the alleged attachment; (3) that the prescribed notices and warrants have been issued by the Court; and (4) that there has been publication and affixture and service of the prescribed notices and warrants in the prescribed manner. It was contended on the contrary, that he has purchased the lands in question from C. Raghavendra Rao, on the 9th of August. 1955 and after having obtained a decree against his vendor has entered into position of the properties through Court. It was, therefore, contended that the defendant was in rightful possession of the land and the plaintiff was not entitled to a decree for possession or for mesne profits.
3. The learned trial Judge framed several issues and on consideration of the same, held that the plaintiff had failed to prove the factum and the validity of attachment before judgment, and therefore, she failed to prove her title to the suit lands. It further held that the sale in favour of the defendant was valid and was not affected by the alleged attachment. It also held that the defendant had improved the properties and that the plaintiff was not entitled to any relief. The suit was consequently dismissed.
4. The correctness of this decision was challenged by the plaintiff by preferring Rule A. No. 67 of 1963. The learned District Judge, Mysore, by his judgment dated the 17th of April, 1967, has affirmed the decision of the trial Court. The learned appellate Judge has also found that the plaintiff has failed to prove the factum of attachment, as also its validity. It has also been held that Raghavendra Rao has not waived his right to challenge the attachment in question and that the defendant had proved his sale, and therefore, the plaintiff was not entitled to a decree. It is this judgment and decree that are challenged by the plaintiff in the present second appeal.
5. The submission made by the learned Advocate for the appellant is that as Raghavendra Rao did not object to the attachment, he had waived his right to urge the contention against the attachment and therefore, attachment must be treated to be a valid one. It was also contended that the mode prescribed in the Code regarding attachment of properties was directory and it is not mandatory and in any event, the act of the Court should not prejudice the parties. It was, therefore, contended that the decision given by this Court in the case of Ramaiah Gowda v. Venkatagiri Bhatta, (1969 (1) Mys LJ 234) does not lay down the law correctly.
6. On the other band, the learned Advocate for the respondent contended that the plea of waiver was not raised before the trial Court and the plea was one of fact. In any event, it was stated that the question of waiver does not arise, as Raghavendra Rao was never served with the order of attachment as is evidenced from the record. It was also submitted that there is the concurrent finding of the Courts below on the question, and in that situation, there was no occasion for Raghavendra Rao to waive defects in the attachment. It was further contended that the defendant was the purchaser of the properties and so far as the purchase by plaintiff was concerned, it was subsequent to it. It was only on the basis that there is an attachment, plaintiff is claiming the properties; it was therefore necessary for the Court to determine as to whether there was a real and effective attachment which can affect the rights of the defendant, It was submitted that the provisions relating to the attachment of property are mandatory and the decision of this Court does not require reconsideration and there is no need to refer the matter to a larger Bench. It was also submitted that the view taken by this Court is a view taken by most of the High Courts in India. Finally, it was submitted that there was no question of the parties suffering on account of the act of the Court; on the contrary plaintiff was trying to take advantage of the order and it was his duty to show that there was effective order of the Court. It is these rival contentions that are required to be determined in this second appeal. For the purpose of consideration of this question, it is necessary to set out again the admitted or proved facts:
7. Raghavendra Rao had borrowed a sum of Rs. 4,000/- on a possessory mortgage executed by him in favour of the plaintiff on 25-9-1950. The properly mortgaged was a house situated in Padavarahalli Extension, Devaraja Mohalla, Mysore. Plaintiff instituted Original Suit No. 144/54 in the Court of the Subordinate Judge at Mysore on the 1st of December, 1954. On that very day, an application I. A. No. 1 was filed which is marked as Ext. D.23 praying for attachment .before judgment of certain lands belonging to Raghavendra Rao on the ground that the mortgaged property was not sufficient security. The Court ordered 'attachment conditionally' and Exhibit P-2 is the attachment warrant issued in the form prescribed under Order XXXVIII, Rule 5, Civil P. C. This was sent for execution to Amin Changappa, P. W. 1. A clerk in the plaintiff's shop P. W. 2 Chandrashekharaiab accompanied the Amin and Ext. P-1 is the attachment list prepared by the said Amin and it is also attested by Chandrasekharaiah. It is necessary to note that admittedly Raghavendra Rao -- defendant in that suit was residing at Bangalore and that is clear from the cause title Ext. D.4 which mentions that he was residing at Door No. C.102 Central Street, Bangalore City. Copy of the notice issued under Order XXXVIII, Rule 5 or the prohibitory order under Order XXI, Rule 54, Civil P. C. was never served upon Raghavendra Rao. It appears, however, that in the suit, Raghavendra Rao appeared voluntarily and a compromise decree was passed granting six months time for payment. The property was thereafter purchased by the present plaintiff in Court auction. In the meanwhile, on 9-8-1955 as per Exhibit P.22 it was sold in favour of the defendant. The finding of fact recorded by the Courts below is, as already stated, that Raghavendra Rao was residing at Bangalore; that notice was not sent To him to furnish security or to show cause nor was Raghavendra Rao served with any notice under Order XXXVIII, Rule 5. Civil P. C. It has been further found that prohibitory order had to be issued in the printed form, a copy of which is at Ext. D.I, but such a prohibitory order was not issued, much less was it served on Raghavendra Rao. Thus it is established that no prohibitory order was issued in the case. This is what the learned appellate Judge has, after consideration of the entire evidence found :
'But then neither in Ex. P-1 nor in Ex. P-2 is there anything to indicate that it was proclaimed that Raghavendra Rao was prohibited from alienating the property in any way and that no other persons should purchase the same. Thus, from the above discussion, the following conclusions are well established: On the representation of the application Ex. D.23 the Court ordered 'attach conditionally.' But neither any notice nor the prohibitory order as required under Order 38, Rule 5 (1) and Order 21, Rule 54, Civil P. C. was issued to Raghavendra Rao much less served. Secondly, the property sought to be attached was too vague for identification. The Documents Exs. P-l and P-2 drawn in this behalf are clumsy and far from satisfactory and conclusive.....'
None of these findings thus recorded are assailed and it is also necessary to remember that they are unassailable in this second appeal.
8. On an application filed under the provisions of Order XXXVIII, Rule 5, Civil P. C., among other things which are enjoined on the Court, the first is to direct the defendant, within a time to be affixed by it, to furnish security in such sum as may be specified in the order, and secondly direct him to appear and show cause why he should not be asked to furnish security. The Court may also direct the conditional attachment of the whole or any portion of the property as provided under Sub-clause (3) of Rule 5, Order XXXVIII. It is only when the defendant fails to furnish security or fails to appear and show cause, the Court will have to further proceed under Order XXXVIII, Rule 6, Civil P. C. Even in the proceedings under Order XXXVIII, Rule 5 (c) directing attachment of the properly specified in the application, still under Order XXXVIII, Rule 5 it would be obligatory upon the Court to follow the provisions of Order XXXVIII, Rule 7 i.e., that the attachment shall be made in the manner provided for the attachment of properly in execution of a decree. The attachment will have therefore to be effected in the manner provided under Order XXI, Rule 54, Civil P. C. and that is where the properly is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any manner and this order has to be proclaimed etc., as provided under Order XXI, Rule 54 (2), Civil P. C. Thus, there must be first an order of attachment, and secondly, in execution of that order, formalities prescribed therein have to be complied with i. e., there should be a prohibitory order restraining the person from in any way alienating the property sought to be attached. The order of attachment will have to be proclaimed by beat of drum or other customary mode. The order will also have to be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house etc. Therefore for an order of attachment to become effective, these conditions which are laid down have to be complied with, so that it can be a restraint on alienation to attract the provisions of Section 64 of Civil P. C.
9. This Court had occasion to consider the question similar to the one arising in this appeal in (1969 (1) Mys LJ 234). It has been laid down in that case as follows:
'Where a notice in Form 5 of Appendix 'E' and the list of properties proposed to be placed under attachment were affixed to one of the items described in the list and there was no prohibitory order in Form No. 24 of Appendix 'E' of the Code of Civil Procedure, there is non-compliance of the provisions of Rule 54 of Order 21 and, there is no valid attachment.'
In that case also, the position was identical namely, of a competition between the purchaser in execution of a decree and a purchaser in a private sale. After consideration of the entire matter, it was stated in that case, that a notice in Form V of Appendix 'E' was issued, but it was not a prohibitory order issued pursuant to Rule 54 (1) of Order XXI, which has to be in Form No. 24 of Appendix E. The Court therefore, held that there was no proof of any compliance with any of the provisions of Order XXI, Rule 54 and, the positive evidence excludes the possibility of even an inference or presumption that attempts of compliance were made. This Court then referred to the judgment of the Privy Council reported in AIR 1928 PC 139 and the judgments of the Madras High Court and the former High Court of Mysore, and held that
'the essence of an order for attachment is to prohibit the judgment-debtor from transferring the property and until such a prohibition is proclaimed and made known in the way provided by the rule, it cannot be said to have come into operation.'
The Court therefore held that the attachment relied upon by the plaintiff in that case was not an effective attachment and he could not make use of the provisions of Section 64 of the Civil P. C. to defeat the rights of the defendant in that case. Thus, what has been established by this decision is that the essence of an order of attachment being to prohibit the judgment-debtor from transferring the property, until such a prohibition is proclaimed and made known in the way provided by the rule i. e., compliance with the provisions of Order XXI, Rule 54, the attachment does not come into operation.
10. The view taken by this Court is supported by the judgments of several Courts in India. The first is the judgment of the High Court of Madras in the case reported in AIR 1920 Mad 804. There is also a recent pronouncement of the High Court of Madras in the case of Murugappa Chettiar v. ThiruMalai Nadar (AIR 1948 Mad 191), wherein Rajammanar, J. as he then was, held as follows:--
'The fact that an order of attachment has been pending is not sufficient to establish the factum of attachment. The order is one thing, the attachment is another. 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. An attachment cannot be said to have been made unless and until the provisions of both the sub-rules of Order 21, Rule 54 have been complied with.'
11. A Full Bench of the High Court of Calcutta in the case of Bharat Chandra Pal v. Gouranga Chandra Pal : AIR1927Cal885 held as follows:--
'Where no prohibitory order, as contemplated by Order 21, Rule 54 was given to the peon to publish but what the peon did was to go to the locality and to proclaim by beat of drum that the property was attached and affixed on the property, which he was directed to attach, a copy of the order as contemplated under Order 38, Rule 5 which was made over to him : Held that there had been no legal attachment.'
12. The former High Court of Mysore in the case of Sree Padachar v. Doreswamy, (1950) 55 Mys HCR 330 has laid down as follows :--
'According to Rule 7 of Order XXXVIII, Code of Civil Procedure the manner in which immovable property is to be attached before judgment is as provided in Order XXI, Rule 54 of the Code. Therefore where an order of attachment of immoveable property before judgment is issued in Form 5 Appendix F and no prohibitory notice in form 24, Appendix E is issued the first requisite of Order XXI, Rule 54 is not complied with and there is no valid attachment. The purchaser of the property subsequent to such invalid attachment is unaffected by the attachment. In the absence of any reference in the order sheet or other relevant records of the case to Order XXI, Rule 54 or to the publication of attachment as required in that order, no presumption that the attachment was properly made could arise.'
13. It is necessary to note that the basis of all these decisions is the judgment of the Privy Council in the case (AIR 1928 PC 139), wherein their Lordships held that
'No property can be declared to be attached unless firstly 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.'
14. All these cases have been considered in a recent Full Bench judgment of the Patna High Court in the case of Tapeshwar Misstr v. Santhokh Singh, (AIR 1969 Pat 299) and in that case it is held:
'Unless the proper form under Order 21, Rule 54 is used and the defendant or judgment-debtor is restrained from transferring or charging the immovable property, the attachment made cannot have the effect of restraining him from doing so. There can be no attachment before judgment of any property, if the notice of attachment is issued under Order 38, Rule 5 in form No. 5 because in order to be valid attachment of the immovable property notice is to be issued under Order 21, Rule 54 in Form No. 24. In issuing notice of attachment before judgment in Form No. 5 of Appendix F. under p. 38, Rule 5 a party is not to blame and it is the duty of the Court itself to be circumspect that Form No. 24 of Appendix E is used putting the word 'defendant' for the word 'judgment-debtor' so that the suit plaintiff may not suffer on account of any lacuna on the part of the Court.
The provision of Order 38, Rule 7 makes it clear that while attaching immovable property before judgment the manner of attachment must be the same as in regard to the attachment of property in course of execution of a decree which therefore, attracts the operation of Order 21, Rule 54. The manner of attachment is not only provided in Clause 2 of Order 21, Rule 54 but it is also provided in Clause 1 thereof which makes it obligatory for the Court to pass an order 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. Where this is not done, the manner of attachment is not the one prescribed in Order 21, Rule 54 which is relevant in determining whether an attachment before judgment is valid or not.
As a matter of fact, the form prescribed under Order 38, Rule 5 is a supplemental form and it may be applicable to a case which is not clearly covered by Order 21, Rule 43 or Rule 54. If it were a case of conflict only between Form No. 5 of Appendix F issued under Order 38, Rule 5 and Form No. 24 of Appendix E issued under Order 21, Rule 54 the point was arguable that specific provision under Order 38. Rule 5 might be taken to prevail over Form No. 24 of Appendix E. As it is however, there is positive provision in Order 21, Rule 54 itself, the language of which has been incorporated in Form No. 24 of Appendix E making it clear that the order must specifically prohibit the judgment-debtor from transferring or charging the property and likewise the form to be applicable in issuing notice under Order 38, Rule 5, should be so that the defendant must be specifically prohibited from transferring or charging, the property in any manner, and all persons from taking any benefit from such transfer or charge. The alteration in Form No. 24 of Appendix E should be mutatis mutandis with slight variation and not that the essential ingredient of Order 21, Rule 54 is to be completely ignored. The policy of the Legislature is obvious in enacting this ingredient in Order 21, Rule 54, so that notice may be given both to the judgment-debtor or the defendant, as also to the purchaser or any person taking any benefit under the transaction that after the attachment both transferring and charging and taking any benefit from such transfer or charge will be invalid in law.'
That is the reason why the learned appellate Judge has pointed out that the consensus of judicial pronouncement is in favour of the view taken by this Court.
15. The learned advocate for the appellant, however, relies very strongly upon the judgment of the Nagpur High Court in the case of Dhian Singh Sobha Singh v. Secretary of State Through Deputy Commissioner, Nimar (AIR 1945 Nag 97). In that case, this is what the Court said :
'(c) Even omission to attach property before sale thereof in execution of a decree does not invalidate the sale:
(d) the object of attachment is only to prevent alienation; it does not create any security, charge or Hen in favour of the attaching creditor over the property attached but only prevents and avoids private alienation by the owner of the property.
(e) Jurisdiction is entirely independent of the manner of its exercise. The distinction between the two is that error of judgment is revisable by the appellate Court within a certain fixed time and is therefore voidable whereas the usurpation of power is a mere nullity. The jurisdiction of the Court to attach property before judgment, is indicated by the words 'if so prescribed' in Section 94 and that condition is satisfied when rules are made to order attachment of any property of the defendant. Rules 5 and 6 of Order 38 bring into effect the jurisdiction, that is conferred by Section 94 in so far as they make it clear that the Court has power to order attachment before judgment. The provisions made in Rules 5 and 6 of Order 38 must be interpreted as laying down the manner in which the Court's jurisdiction is to be exercised, and accordingly regarded as dealing with matters of procedure regulating the mode of exercise of a jurisdiction that exists. On this view any error in the manner of the exercise of the jurisdiction conferred by Section 94 would not affect the validity of the Court's act if the Court's jurisdiction is derived from a source independent of the provisions which merely prescribed the manner of its exercise. Inasmuch as the Court has jurisdiction to order an attachment before judgment it would prima facie be regarded as valid and operative unless it is set aside in the manner provided by law by the party prejudicially affected by it. An irregular attachment would thus amount to a voidable act, but in no case would it be a nullity.
Accordingly an order of attachment before judgment is not null and void on account of the omission to follow the procedure laid down by Order 38, Rule 5; it is only an irregularity which is cured by acquiescence of the parties adversely affected, for the reason that Order 38, Rule 5 docs not lay down any condition precedent to the accrual or exercise of the Court's jurisdiction but only prescribes the mode in which the Court's admitted jurisdiction is to be exercised.' It is necessary to note that it is not even contended in the present case that every omission to follow the procedure to attach property before sale will invalidate the same. What is established in the present case is that the order of attachment itself was not issued and it was not served as required preventing the defendant from alienating the property. In a case where a stranger purchaser is being affected it is necessary for the Court to see as to whether there was really an effective order which prevented the party to the suit from alienating the property. Plaintiff is claiming the benefit of Section 64 on the ground that the property is attached and if he fails to prove that there is an attachment, then he cannot claim priority, as his sale is subsequent to the sale made in favour of the defendant. The right claimed by the plaintiff being dependent upon the attachment in my view, it is necessary for the plaintiff to establish that there was an order of attachment prohibiting sale as provided under Order 21, Rule 54, Civil P. C. In my view, it is necessary for the attachment to become effective that the conditions laid down under Order 2f, Rule 54 are followed and if they are not followed then there is no attachment which prevents the party from dealing with his property. Having regard to the nature of the provisions in view, it is clear that they are mandatory. In my view, it is not possible to apply the principles laid down in Dhian Singh Sobha Singh's case AIR 1945 Nag 97 to the facts of the present case. It is also necessary to note that the judgment of the Lahore High Court reported in AIR 1938 Lah 49 has been referred to in the judgment of the Nagpur High Court in Dhian Singh's case AIR 1945 Nag 97 and therefore I have not considered it necessary to refer to the same. Similarly, the judgment of the Calcutta High Court reported in Badri Prasad v. Babulal, : AIR1950Cal368 has no bearing upon the facts of the present case.
16. In the present case, Raghavendra Rao was never served with the attachment order as the attachment order was not issued and he was not served with even the notice issued under Order 38, Rule 5. Therefore, there is no question of his waiving the right to challenge the validity of the attachment. In my view, it is also not possible to hold in the present case that it was the default of the Court in not issuing the attachment order and therefore plaintiff should not be punished. That is not the question in the present case. Plaintiff got a conditional order of attachment and that conditional order of attachment has not been served upon the defendant even though the plaintiff knew that the defendant was staying at Bangalore. It is also necessary to note that the plaintiff had the other mortgage security and somehow wanted to attach other properties belonging to Raghavendra Rao and see that it is not dealt with by him. In my view, it is not possible to hold in the present case that the plaintiff is entitled to protection as there was a default on the part of the Court in taking action in the manner in which it has been done.
17. Thus, in my view, the decision given by this Court does not require reconsideration. On the contrary, it is supported fully by the judgment of several High Courts in India including the Privy Council judgment cited above.
18. Thus, there is no good ground to interfere with the decisions of the courts below. This appeal therefore fails and the same is dismissed. No costs.