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D. Lakshminarayana Choudary and anr. Vs. Vijaya Pictures, Vijayawada - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.O. No. 391 of 1971
Judge
Reported inAIR1972AP172
ActsCode of Civil Procedure (CPC), 1908 - Order 21, Rule 54
AppellantD. Lakshminarayana Choudary and anr.
RespondentVijaya Pictures, Vijayawada
Appellant AdvocateB.V. Subbaiah, Adv.
Respondent AdvocateB. Bheemaraju, Adv.
Excerpt:
.....manner improved the position. we are therefore satisfied that the omission to serve such a formal order would not vitiate the attachment order which in all other respects has been validly effected. 6. since no other contention was raised, the appeal must fail and it is hereby dismissed with..........decree is paid, the omission to serve them with a prohibitory order as is required under order 21, rule 54, civil p. c. would not vitiate the attachment effected complying with all other requirements of effecting the attachment. it was further found that although the proclamation was not pasted on the notice board of the collector, the proclamation does not become invalid. it was also found that the appellants were served with notice under order, 21 , rule 66 (2), civil p. c. as a result of these findings the subordinate judges , dismissed the application.3. in this appeal sri b. v. subbaiah, the learned counsel for the appellants, vehemently argued that although the other requirements of attachment made have been complied with, but when a is required under order, 21, rule 54, civil p......
Judgment:

Gopalrao Ekbote, J.

1. This is an appeal from the order of the learned Subordinate Judge Chirala made in E. A. Nos. 221 and 235 and 235 of 1971 in O. S. No. 146 of 1967 on 15-10-1971.

2. The facts in brief are that there is a money decree passed against a firm of which the appellants are two of the partners. In the execution of the decree certain property of judgment-debtors was attached. The appellants filed E. A. No. 221 of 1971 raising various objections in regard to the attachment and the proclamation of sale issued for he purpose of selling the said property. It is not necessary to detail the various steps taken to put the ;property to sale because nothing turns upon them. The executing Court by the order under appeal held that in view of the fact that the appellants had undertaken not to alienate the property till the entire amount of the decree is paid, the omission to serve them with a prohibitory order as is required under Order 21, Rule 54, Civil P. C. would not vitiate the attachment effected complying with all other requirements of effecting the attachment. It was further found that although the proclamation was not pasted on the notice board of the Collector, the proclamation does not become invalid. It was also found that the appellants were served with notice under Order, 21 , Rule 66 (2), Civil P. C. As a result of these findings the Subordinate Judges , dismissed the application.

3. In this appeal Sri B. V. Subbaiah, the learned counsel for the appellants, vehemently argued that although the other requirements of attachment made have been complied with, but when a is required under Order, 21, Rule 54, Civil P. C. the order prohibiting the judgment-debtors from alienating the property attached has not been served upon the appellants, the attachment would be invalid.

4. It is no doubt true that such an objection can be taken by the judgment-debtors under section 47. Civil P. C. even at this stage. We do not, however, find any substance in this contention. What happened in the case was that during the pendency of the suit an application for interim injunction was filed. An ad-interim injunction was also granted. It was, however vacated on the appellants on their own behalf and on behalf of the other partners of the firm giving an undertaking that they would not alienate in any manner the property mentioned in the schedule attached to the decree. This undertaking was made part of the decree. The question therefore is whether in the presence of this undertaking given by the appellants along with their partner sand which undertaking was made part of the decree, omission to serve upon them the order prohibiting them to alienate the order prohibiting them to alienate the property would vitiate the attached order. In such a case what has to be seen is the substance and not attach greater importance to the form. Except fulfilling the empty formality by serving an order of prohibition on the appellants who had already undertaken not to transfer the property and which undertaking was made ;part of the decree, no other purpose would have been served. After all the purpose or prohibitory order postulated under Order 21, Rule 54, Civil P. C. is to make aware the judgment-debtors that attachment has been effected and that they should not make transfer thereafter. When that purpose is more than fulfilled because of the terms of the decree, we fail to see how the formal order of prohibition would have in any manner improved the position. We are therefore satisfied that the omission to serve such a formal order would not vitiate the attachment order which in all other respects has been validly effected. The learned Subordinate Judge, in our view, was right in rejecting that contention and we find ourselves in complete agreement with that view. No authority could be cited before us by the leaned Advocate for the appellants in support of the contention that even in such cases if the formality of serving the prohibitory order is not followed the attachment becomes void. In the absence of any authority and particularly in view of the circumstances of the present case. we have no manner of doubt that the attachment would not be invalid as the appellants-judgment-debtors had given an under- ( . . . . . ) the suit property and such undertaking was made a part of the decree.

5. The two other contentions, that is to say, firstly that no notice under Order 21, Rule 66 (2), Civil P. C. was served upon the appellants and secondly that the sale proclamation was not pasted on the notice board of Collector, the learned Advocate for the appellants intends to take if it becomes necessary in a petition filed for setting aside the sale under O, 21, R. 90, Civil P. C. We are therefore relieved from considering these contentions.

6. Since no other contention was raised, the appeal must fail and it is hereby dismissed with costs. The cost of this appeal will be treated as costs in execution.

7. Appeal dismissed.


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