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Pedda Edla Ram Kishtiah Vs. Manne Pochiah - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.A.O. No. 80 of 1960
Judge
Reported inAIR1967AP148
ActsHyderabad Tenancy and Agricultural Lands Act, 1950 - Sections 47; Code of Civil Procedure (CPC), 1908 - Sections 51, Order 21, Rule 55 - Order 38, Rules 5 and 6
AppellantPedda Edla Ram Kishtiah
RespondentManne Pochiah
Appellant AdvocateK.A. Mukhtadir, Adv.
Respondent AdvocateB.P. Jeevan Reddy, Adv.
Excerpt:
.....is not transfer as it has effect of prohibiting transfer - held, no sanction of tahsildar under section 47 required for attachment of immovable property. - - it is well to remember in considering this question that the requirement for a valid transfer is that sanction should be obtained before the transfer. (6) it may, be stated that where a decree in execution by attachment of immovable property of the judgment-debtor, is satisfied, the attachment is deemed to have been withdrawn under o. - (1) where, at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-(a) is about to dispose of the whole or any part of his property;.....to obtain and produce sanction of the collector as required under section 47 of the act for the sale of lands under attachment. as this order was not complied with, the execution petition was struck off. in appeal, the district judge, nizamabad sustained that order firstly on the ground that once the decree-holder has submitted to the order, and approached the collector, he cannot now turn round and say that the order of the court below passed on 30th of april, 1959 was not correct, and secondly, that act was passed not only for regulating the relations of land-holders and tenants of agricultural lands but also for preventing alienation's of such lands. as such, the property was not liable to attachment and sale in execution of the decree under s. 60 c.p.c. without sanction under s......
Judgment:

Jaganmohan Reddy, J.

(1) The only question involved in this C.M.S.A. before us is whether ollala Ambiah v. Avadhanula Mallanna, : AIR1964AP514 requires re-consideration in so far as it affects attachments of properties in execution of decrees obtained against agriculturists governed by the provisions of the Hyderabad Tenancy and Agricultural Lands Act (XXI of 1950) (hereinafter called the Act).

(2) It may be stated that the Munsif Magistrate, Kamareddy passed an order on 30-4-1959 directing the decree-holder to obtain and produce sanction of the Collector as required under Section 47 of the Act for the sale of lands under attachment. As this order was not complied with, the execution petition was struck off. In appeal, the District Judge, Nizamabad sustained that order firstly on the ground that once the decree-holder has submitted to the order, and approached the Collector, he cannot now turn round and say that the order of the Court below passed on 30th of April, 1959 was not correct, and secondly, that Act was passed not only for regulating the relations of land-holders and tenants of agricultural lands but also for preventing alienation's of such lands. As such, the property was not liable to attachment and sale in execution of the decree under S. 60 C.P.C. without sanction under S. 47 of the Act.

(3) Our learned brother Sharfuddin, J. referred the matter to a bench inasmuch as there was no procedure prescribed under the rules for obtaining sanction in respect of lands attached and to be sold belonging to a judgment-debtor who is an agriculturist.

(4) Section 47 of the Act which interdicts transfer of agricultural lands is as follows: '47(1) Notwithstanding anything contained in any other law for the time being in force or in any decree or order of a court, no permanent alienation and no other transfer of agricultural land shall be valid unless it has been made with the previous sanction of the Tahsildar:

Provided that the Tahsildar may declare a permanent alienation or any other transfer of agricultural land to be valid if the permanent alienation or transfer took place before the commencement of the Hyderabad Tenancy and Agricultural Lands (Amendments) Act, 1954 and possession of the land transferred was given to the vendee before such commencement if application for sanction is made within one year after such commencement.

(2) Applications for such previous sanction shall be made and disposed of in accordance with such procedure as may be prescribed.' It would be seen from the above provisions that without the permission of the Tahsildar, no permanent alienation or any other transfer of agricultural land can take place notwithstanding anything contained in any other law for the time being in force or in any decree or order of the Court. It may also be noticed that the sanction of the Tahsildar must be a sanction previous to the transfer. The proviso permits subsequent sanction being accorded where transfer has been effected, and possession of the land transferred was given to the vendee before the commencement of the Act. Even in such case sanction should be obtained within one year after the commencement of the said Act. It may be stated that sub-section (2) of Section 47 of the Act empowers the framing of rules prescribing the procedure for obtaining previous sanctions of the Tahsildar required under sub-section (1).

(5) It has been assumed in this reference that Section 47 of the Act applies to sales of agricultural lands in execution of the decree. The validity of this assumption has not been canvassed before us. On this assumption, it is contended that since attachment is an integral part of a sale in execution, sanction should be obtained even before attachment, so that no attachment is valid unless sanction of the Tahsildar has been obtained therefor. Inasmuch as the reference to the Full Bench is only limited to this extent, we confine ourselves to the consideration whether the decision in : AIR1964AP514 touching upon the matter is correctly decided. But before considering the actual decision, we wish to examine the question on principle and under the provisions of the C.P.C. vis a vis the prohibition under Section 47 of the Act. It is well to remember in considering this question that the requirement for a valid transfer is that sanction should be obtained before the transfer. Whether an attachment of immovable property is a transfer within the meaning of this section is what must be determined in this reference. In our view, prima facie, attachment is not a transfer and no sanction would be necessary to attach agricultural lands under Section 47 of the Act. In fact attachment has the effect of prohibiting the judgment-debtor from transferring or charging the attached property in any way, and it also prohibits all persons from taking benefit from any such transfer or charge. (vide order 21 Rule 54 C.P.C.). Where the effect of an order of attachment itself is to interdict a transfer or prohibit any charge, it cannot be said that such an order amounts to a transfer.

(6) It may, be stated that where a decree in execution by attachment of immovable property of the judgment-debtor, is satisfied, the attachment is deemed to have been withdrawn under O. 21, R. 55 C.P.C. Rule 55 is as follows:-

'Where-

(a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into court, or

(b) satisfaction of the decree is otherwise made through the court or certified to the court, or

(c) the decree is set aside or reversed, the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule.'

We may observe that under above provisions it is not every attachment which results in sale; nor, for that matter, is attachment confined to the process of sale after the decree. The Civil Procedure Code provides for attachment of property before judgment, in a suit which ma not necessarily result in a decree in plaintiffs favour. This is only a mode whereby a plaintiff, apprehensive that the defendant getting to know about the suit may transfer property, obtains an order or attachment. Order 38, Rules 5 and 6 provide for such orders. Rules 5 and 6 are as follows:-

'(1) Where, at any stage of a suit, the court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-

(a) is about to dispose of the whole or any part of his property; or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appeal and show cause why he should not furnish security.

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimates value thereof.

(3) The Court may also in the orders direct the conditional attachment of the whole or any portion of the property so specified.'

'6. (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.

(2) Where the defendant shows such cause or furnishes the required security and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn or make such other order as it thinks fit.'

These provisions of the Civil Procedure Code, therefore, do not warrant the contention that sanction under Section 47 of the Act is required for mere attachment of the properties notwithstanding the fact that attachment is a part and parcel of the process of execution.

(7) No doubt, in : AIR1964AP514 Chandra Reddy, C.J. and Ananthanarayana Ayyar, J. held that attachment is part and parcel of the process of execution and not an independent process and, therefore, an attachment for the purpose of bringing the property to sale comes within the inhibition enacted in Section 47 of the Act. The Bench was considering a case where the appellant who had obtained a decree, attached a cattle-shed, a house situated four miles from the lands and also the agricultural lands of the respondent in execution, and the respondent objected to the attachment on two grounds: (1) that the shed and the house fell within the exemption contemplated by Section 60, Civil Procedure Code, and (2) that the agricultural lands could not be sold in execution of a decree of Civil Court by virtue of Section 47 of the Act. The trial Court had overruled these objections, which were however, upheld by a single Judge of the High Court.

(8) In Letters Patent Appeal, it was held:

A sale in invitum by a Court is also transfer, but by operation of law. A court sale effects a transfer of the interest of the judgment-debtor in the properties conveyed under the sale certificate. There is a transfer of the judgment-debtor's interest to the auction-purchaser by reason of the Court sale. It, therefore, follows that court sales will offend against Section 47 of the Hyderabad Tenancy Act. The decree-holder cannot bring agricultural lands to sale in the execution of his decree except as provided by that section.'

As we said earlier, we are not concerned in this reference with the decision in so far as it holds that a court sale effects a transfer of the interest of the judgment-debtor in the properties conveyed under the sale certificate by operation of law, an which transfer was also held to attract the provisions of Section 47 of the Act. The Bench further adverted to the contention of Sri Subbarayudu that what is prohibited by Section 47 is a sale and not attachment of the holdings of an agriculturist, and that there is nothing which stands in the way of his client attaching his properties. Even this contention was negatived on the ground, which noticed earlier that attachment is a part and parcel of the process of execution and not an independent process and, therefore, an attachment for the purpose of bringing the property to sale comes within the ambition enacted in Section 47 of the Act. It was observed by Chandra Reddy C.J. at p. 325 (of Andh WR): (at p. 519 WR).

'Here admittedly the attachment was made with a view to bring the properties to sale. There is, therefore, no force in the contention that section 47 does not render the attachment illegal.'

(9) With great respect, we cannot accept the statement of law as being in consonance with our reading of the provisions of the Civil Procedure Code, and the requirements of section 47 of the Act. We may observe that there are many number of cases which have held that absence of attachment itself does not make a sale void. In such circumstances, attachment cannot be considered to be either an essential part of the sale or as a necessary step in the process of transfer. Attachment, in our view, is a remedy afforded to a decree holder for his own protection, and the protection of purchasers of the property to be sold. It consists in the case of immovable property merely in a prohibition by the court by which the judgment-debtor is restrained from alienating the property previous to the court sales. An omission to attach the property cannot however, be an objection to its sale. It appears that a decision of the Full Bench of this Court in Satyanarayana Murthy v. Bhavanarayana, 1957 Andh LT 241: (AIR 1957 Andh Pra 185) was evidently not been brought to the notice of the Bench in : AIR1964AP514 . The Full Bench held that an attachment is not part of the process of 'Publication or conduct of the sale.' Bhimasankaram J. with whom Subba Rao, C.J. and Satyanarayana Raju, J. (as they then were) agreed, observed, at p. 251 (of Andh LT): (at p. 190 of AIR). It seems to me that the words 'conduct of sale' cannot be held to cover the anterior process of attachment. See Ramchhiabar Misra v. Bechu Bhagat, (1885) ILR 7 All 641 at p. 645. I find myself, therefore, in agreement with the view expressed by Satyanarayana Rao, J. in Seshagiri Aiyar v. Valambal Ammal, : AIR1952Mad377 that under the Code the proceedings for sale start with an order for sale made by the court executing the decree under Rule 64. So, there can be no irregularity in the publication or conduct of the sale within the meaning of Rule 90 before an order for sale is made. It is only breaches of the rules that follow Rule 64 that can be characterized as irregularities appertaining to the publication or conduct of the sale. With this view, we respectfully agree.

(10) We were referred to some decisions, one of Kumarayya, J. in Manmohan Reddy v. Ramaiah, decision of this court in C.R.P. No. 383 of 1960 dated 19-1-1962: (1962) 1 Andh WR (SN) 58, in C.R.P. No. 384 of 1960 decided on 19-1-1962 (Andh Pra) for the proposition that the Act puts an embargo on attachment or sale. But, it may be observed that that decision was rendered not under section 47 but under section 31 of the Act, according to which the tenant's interest in any land held by him could not be attached or sold. Two decisions of Krishna Rao, J. in Pasumarti Ramulu v. N. Anantharamulu, : AIR1966AP70 and C.B. Taraporwala v. Kazim Ali Pasha. Decision of this Court in Appln. No. 146/64 etc. in Civil Suit No. 14/58 dated 27-8-65: : AIR1966AP361 and of Ekbote, J. in M. Raghavachari v. S. Ramakrishna Reddy, (1965) 2 Andh WR 61 and also of Chandrasekhara Sastry J. in Venkatarao v. Ch. Sattaiah, Decision of this Court in C.R.P. No. 2046/63 dated 21-7-64: (1964) 2 Andh WR(SN) 43 were also cited. But, we find it necessary to consider these decisions inasmuch as they do not consider the particular aspect of the matter which falls for consideration in this reference.

(11) In our view, no sanction of the Tahlsildar under S. 47 of the Act is required for attachment of immovable property in execution of a decree. Sanction, would no doubt be necessary for effecting a court sale. Mr. Mukthadar invites us to indicate at what stage of the court sale, should the auction purchaser obtain sanction. He adverts to the provisions of Order 21, Rules 84 to 86 of the Civil Procedure Code whereby an auction purchaser has to deposit the full amount of purchase money, and the general stamp for certificate under Rule 94 or the amount required for such stamp within 15 days from the date of the sale of the property. He contends that it is impossible to obtain sanction from the Tahsildar within the said period of 15 days, as under the rule as framed under the Act a Tahsildar can consider the application only 15 days after the same had been notified. Even if it is held that the time for obtaining sanction is taken after the confirmation of the sale, such sanction must be obtained within 15 days, which it is impossible to obtain. This, it is contended, would lead to an impasse. But as we have stated earlier, we are not here concerned with this aspect of the matter. At what stage the application has to be made in respect of court sales under section 47 of the Act is not within the scope of this reference. Apart from this, if the are anomalies, it is for the Government to consider, and to take steps effect necessary amendments either in the statutory provisions or the rules, or for that matter, even the provisions of the Civil Procedure Code in the First Schedule can be suitably amended.

(12) Our answer to the reference, therefore, is that no sanction under S. 47 of the Act is necessary for attaching any agricultural lands.

(13) IJ/AGJ/D.V.C.

(14) Reference answered.


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