1. This appeal arises out of a suit filed by the plaintiff as C. S. 18 of 1960 in the Court of the Chief Judge. City Civil Court, Hyderabad against one Ramakrishtiah and Yellappa and the plaintiff's brother Adapa Narayan.
2. The material allegations in the plaint are that the plaintiff, third defendant, Adapa Hanmaiah and Ramalingam are brothers and members of a Hindu joint family till 1938, when Ramalingam separated from the rest of the family. After the separation of Ramalingam, the family continued to be joint till July 1940 when there was separation in mess between the brothers. The plaintiff's allegation is that thereafter separate khatas were opened in the names of the three brothers representing their branch of families and all the amounts paid or expended by them used to be debited in their respective names. In 1942 the third defendant opened a shop in a partnership with the 1st dependent under the name and style of Adapa Narayan Bombay Palakol Cloth shop borrowing monies from the family funds. The plaintiff and his brother Hanmaiah had also lent money to the said shop. The 1st defendant filed O. S. 23/44 in the District Court, Secunderabad for dissolution of partnership and rendition of accounts. The 1st dependent then alleged that the third defendant had entered into a partnership as manager of joint family. The third defendant then allegation in his written statement. A preliminary decree was passed on 19-4-1944 against only the third defendant and an arbitrator was appointed to give an award on the profits and on the basis of the award made by the arbitrator, the court passed the final decree on 8-10-1951. The allegation of the plaintiff is that in the arbitration proceedings, none of the other members of the family including the plaintiff was represented. The plaintiff had represented in O. S. 23/44 till the preliminary decree stage in his capacity as General Power of Attorney against of the Ist defendant and not on behalf of his family. During the progress of the arbitration proceedings, as differences arose between the three brothers, the plaintiff filed a suit for partition on 11-7-1951 being O. S. 8/1/51.
The judgment in O. S. 8/1/51 discloses that the joint family had entered into a partnership with the 1st dependent. In execution of the decree in O. S. 23/44 the 1st defendant had filed an application for attachment of properties and the plaintiff had filed a claim petition under O. 21 Rule 58, C. P. C. As the 1st defendant did not press his execution petition, the objection petition was also closed as not pressed. The second defendant who had obtained a decree in O. S. 101/53 on the file of the then Subordinate Judge, Secunderabad, attached the decree obtained by the 2nd defendant against the third defendant and in his capacity of attaching creditor filed an execution petition and attached house Nos. 169 and 170 at Marredpalli, Secunderabad, House Nos. 52, 54, 55 and 64 at Trimulgherry and House Nos. 71 to 76 at Mettuguda, Secunderabad for the recovery of the sum due under his decree. The plaintiff contended that the said attachment is illegal and unauthorised and also file an objection petition on 16-1-57 under Order 21, Rule 58, C. P. C. which was dismissed. Aggrieved by that order, he has filed the present suit under Order 21, R. 63, C. P. C. praying that the order dated 5th July 1960 in his claim petition be set aside and the attachment order dated 13th July 1958 be vacated. The order of the trial court under Order 21, R. 58, C. P. C. was impugned as erroneous and it was alleged that it was liable to be set aside on the following grounds:
(a) The decree in O. S. 23/44 was against the third defendant alone and was not binding on the plaintiff and in any event the attachment to the extent of plaintiff's 1/3 share in the attached properties is improper;
(b) the observation by the court that the plaintiff had admitted that the partnership business is of the joint family venture, is erroneous;
(c) the plaintiff on the date of the application under O. 21, Rule 58, C. P. C.. was in possession of all the properties as Receiver appointed by the court in O. S. 8/1/51 by an order dated 10-8-57;
(d) he was in actual possession of his 1/3 share in the attached properties and therefore the order of attachment could not have been extended to his share;
(e) the attachment effected in execution was illegal as it was in contravention of an injunction order issued by the 3rd Addl. Judge, City Civil Court, Secunderabad against the 1st defendant on 14-10-58 restraining him from executing the decree in O. S. No. 23/44.
(f) as the plaintiff was Receiver on the date of the properties attached, the properties were therefore not liable to attachment except with the leave of the court which appointed him Receiver;
(g) out of the properties attached, house No. 169 Marredpalli, House Nos. 52 and 53 Trimulgherry were exclusively allotted to the plaintiff and therefore those houses were not attachable.
The 1st defendant admitted that the plaintiff, third defendant Adapa Hanumaiah and Ramalingam were all brothers but he denied his knowledge of separation of Ramalingam from the joint family. He averred that the defendants continued to be joint till the finding of O. S. 8/51 and there was no separation of mess among the brothers till the date of the suit. He was not aware whether separate khatas were opened in their names and that the amounts have been debited in their respective names. He Categorically denied that the third defendant borrowed money from the joint family and entered into a partnership with him in his personal capacity. The averment was that the partnership was entered into by the third defendant as head and manager of the Hindu joint family and that this was done by him with the knowledge and consent of the plaintiff and the negotiations with the partnership were personally conducted by all the brothers and the plaintiff was personally conducting the business of the said firm in partnership with firm.
He also denied that the suit filed by him as O. S. 23/44 was only against Adapa Narayan and the allegations in the plaint would show that it was against the joint family and that fact was never denied by the plaintiff. The consent memo filed before the preliminary decree was signed by the plaintiff and also by the Advocate representing the plaintiff's family. The plea therefore of the plaintiff that the joint family was not liable, was false and pure after-thought. The Manager of the family was appointed Receiver and the plaintiff worked throughout in his place. The 1st defendant after referring to the suit O. S. 8/1/51 averred that the plaintiff and his brothers had claimed 1/3 share from the partnership assets. He denied that the decree in O. S. 23/44 was passed against the third defendant alone and maintained that it was against the joint family consisting of the plaintiff and his brothers and therefore binding on all of them. He averred that the plaintiff was not in possession as Receiver and that he was not entitled to claim 1/3 share as the decree is binding on him. As regards the reasons for setting aside the attachment, he stated that those are false and untenable.
3. The defendant 2 supported defendant No. 1. He relied on the judgment in O. S. 8/1/51 for showing that the family remained as joint family till the filing of the partition suit. As far as he is concerned, he has stated that he had obtained a decree valid against the 1st defendant and in execution of that decree, has attached the decree in O. S. 23/44 and put it in execution. The execution proceedings taken by him are binding on all the parties and the attachment is legally valid. As far as the allegations made in para 5 of the plaint, which gives the reasons for setting aside the attachment, the second defendant denied the same and put the plaintiff to strict proof of those allegations.
4. On these pleadings the trial court framed as many as 9 issues.
1. Was the decree O. S. 23/44 on the file of the then Dist. Judge, Secunderabad against third defendant alone in his individual capacity ?
2. Were not the properties liable to attachment on the ground that the plaintiff was a Receiver of the properties attached ?
3. Was the plaintiff in actual possession of his 1/3 share in the houses attached in execution of the decree in O. S. 23/44 ?
4. Was the attachment in E. P. 20/58 effected in violation of the injunction order dated 14-10-58 issued by the 3rd Addl. Judge, City Court, Secunderabad against the first defendant ?
5. Is the plaintiff estopped from denying the liability under the decree in O. S., 23/44 ?
6. Is the suit barred by Ss. 11 and 47 of the C. P. C. ?
7. Is the court-fee paid insufficient ?
8. Is the suit within time ?
9. To what relief is the plaintiff entitled to
On the first issue the trial court held that the decree in O. S. 23/44 was not obtained by the 1st defendant against the third defendant alone in his individual capacity but was against the joint family. Issues 2 and 4 which raise the question of the validity of attachment because of the appointment of Receiver and the existence of an injunction order, were not pressed by the learned counsel for the plaintiff in the trial court. Issue 3 was decided against the plaintiff and it was held that the plaintiff was not in actual possession of his 1/3 share in the attached properties as the date of attachment. Under issue 5 the court held that the plaintiff was not estopped from denying the liability under the decree in O. S. 23/44 . Under issue 6 which dealt with the question as to whether the suit was barred Ss. 11 and 47, C. P. C. and issue 8 which was with respect to whether the suit was within time, were not pressed by the learned counsel for the defendants. Under issue 7 the plaintiff was directed to pay court-fee on the market value of the properties which was Rs. 1,00,000. In the result the suit was dismissed with costs.
5. In this appeal by the plaintiff, the learned Advocate General has argued before us only issues 2 and 4. He has filed an application for raising those issues as additional grounds which was allowed as not opposed the respondents. The finding of the trial court is with respect to actual possession of the plaintiff of his 1/3 share in the houses attached. No sufficient data has been brought to our notice to assail that finding. The first contention of the learned Advocate General is that the plaintiff is entitled to file an application under O. 21, R. 58, C. P. C. and a suit under Order 21, Rule 63 as eo nomine, as he was not a party to the decree. His further contention is that in Ex. A. 1 which is the written statement filed by the third defendant in O. S. 23/44, he had clearly stated that the agreement having been come to between the plaintiff (defendant 1) and defendant (defendant 3) they were the only parties and the nature of relationship and arrangement between the defendant and his brothers and others is irrelevant for the purpose of the suit. The preliminary decree in that suit was passed on the basis of agreement and there was no finding as to whether the third defendant represented the joint family and entered into the partnership as its manager. The decree (Ex. A. 3) in O. S. 23/44 also shows that it was only against the third defendant. He further relied on Pichappa Chettiar v. Chokalingam Pillai, AIR 1934 PC 192 in which it has been held that even in cases where the managing member of the joint family enters into a partnership with a stranger, the facto become partners of the business so as to clothe them with all the rights and obligations of a partner.
In such case the family as a unit does not become a partner. But only such contractual relations with the stranger. The partnership will be governed by the Act. In the alternative he argued that in case the plaintiff is considered to be bound by the decree, he is entitled to raise an objection taken by him under S. 47, C. P. C. and his suit may be converted into an application under that section. He relied on P. Veerayya v. Y. Veeraraghavayya, : AIR1961AP298 wherein a Division Bench of this High Court had held that a suit brought under Order 21, R. 63, C. P. C. could be treated as a petition under Section 47, C. P. C. at the stage of second appeal especially when an application had been made in the trial court within time for conversion of the suit into a petition under Section 47, C. P. C. In the circumstances of the case, we do not find any necessity to enter into a discussion of this question. Suffice it to say that the finding of the trial court that the decree in O. S. 23/44 was not obtained against the third defendant in his individual capacity, has not been assailed before us. We are of the opinion that the plaintiff cannot succeed in the appeal that being so, it is immaterial as to whether his suit is considered under O. 21, Rule 63, C. P. C. or the suit is converted into an application under Section 47, C. P. C.
6. The learned Advocate General contended before us that under the provisions of order 21, Rule 63, C. P. C. the validity of attachment can be contested and it is not necessary that the scope of a suit under Order 21, Rule 63, C. P. C. should be restricted to the question as to whether the plaintiff in the suit was in possession in his own right or on behalf of somebody else other than the judgment-debtor on the date of attachment. For this purpose it is necessary to consider the provisions of Order 21, Rule 58, C. P. C. and the subsequent rules. O. 21, R. 58, C. P. C. provides that a claim or an objection can be made to the attachment of any property on the ground that such property is not liable to such attachment and that when such a claim or objection is preferred, the court shall proceed to investigate the claim or objection. Rule 59 of Order 21, C. P. C., provides that the claimant or objector must adduce evidence to show that at the date of attachment, he had some interest in or was possessed of the properties attached. Order 21, Rule 60, C. P. C. provides:
'Where upon the said investigation the court is satisfied that for the reason stated in the claim or objection such property was not, when attached, in the possession of the judgment debtor or of some person in trust for him, or in the occupancy of a tenant or other person paying rent to him, or that, being in possession of the judgment-debtor at such time it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person, or partly on his own account and partly on account of some other person, the court shall make an order releasing the property, wholly or to such extent as it thinks fit, from attachment.'
This rule lays down that the property can be released from attachment only in cases where the person filing the claim or objection proves that such property when attached, was not in possession of the judgment debtor or some persons in trust for him claiming through him or that being the possession of the judgment debtor at such time it was so in his possession, not on his own account or as his own property, but on account of or in trust for some other person. Further, if the court is satisfied that the property, at the time when it was attached, was in possession of the judgment debtor as his own property and not on account of any other person or was in possession of some other person in trust for him or claiming through him, the court shall disallow the claim under Order 21, rule 61, C. P. C. The question of possession of the property at the date of attachment and its return is the only material question which the court has to consider in considering the application under Order 21, Rule 58, Civil P. C. Order 21, Rule 63, C. P. C. provides that the party against whom an order is made in a claim or objection petition, such party may institute a suit to establish the right which he claims to the property in dispute.
7. The learned Advocate-General relied on Venkatapayya v. Venkatachalapathi Rao, AIR 1927 Mad 450 where Devadoss, J. has observed at page 455:
'The claimant need not restrict himself to prove only his claim but can also attack the validity of the attachment proceedings, and when he filed a suit under O. 21, R. 63 he is certainly in no way debarred by anything contained in the Civil P. C. from contesting the validity of attachment. In other words, when asking for a declaration that his property is not liable to attachment, he can also show that either what was done was not attachment or that there was an invalid attachment which could not affect his right in any way'.
In this case the question that was raised was that the Court had no jurisdiction as the attachment was effected by the District Munsif's Court after the receipt of the order staying the execution. It was held that the attachment proceedings after the stay order were absolutely void and then there was no attachment at all but the formality of an attachment was gone through. While considering the applicability of O. 21, R. 58 the learned Judge has considered a case where the validity of attachment was questioned on the ground jurisdiction. It is in this context that it was observed that a suit under O. 21, R. 63, Civil P. C. does not in any way debar the plaintiff from contesting the validity of attachment.
8. The decision cannot be taken as an authority for the proposition that the validity of attachment can be questioned in each and every case in a suit under O. 21, R. 63, Civil P. C. An L. P. A. was preferred from the decision referred to above and was allowed. Vide Venkatachalapathi v. Venkatapayya, AIR 1932 Mad 86. A Division Bench of the Madras High Court considered only the questions arising under Ss. 47 and 11, Civil P. C. which had been answered in favour of the plaintiff by Devadoss, J. Their Lordships did not at all consider the question of the scope of a suit under O. 21, R. 63, Civil P. C. They reached the conclusion that under Ss. 47 and 11, Civil P. C. a purchaser of a property after attachment in execution proceedings is bound by the decision of the executing Court though not a party to it and that decision that has become final cannot be set aside by that party. That being so, we feel that the decision of Devadoss, J. has to be confined to the particular facts of the case.
The learned counsel appearing for the respondents has relied on Venkatasubha Rao v. G. Vigneswaradu, AIR 1928 Mad 840, where a Division Bench of the Madras High Court was considering a case where after the dismissal of the plaintiff's claim under O. 21, R. 58 Civil P. C. the defendant purchased and obtained possession of the property attached and a suit under R. 63 was filed by the plaintiff for possession of the property was barred under O. 2, R. 2, Civil P. C. while considering the question, their Lordships have referred to Phulkumari v. Ghanshyam Misra, (1908) 35 Ind App 22 (PC) and have held that a suit under O.21 Rule 63, C. P. C. is really a suit to set aside the order and if that right had accrued to a party long before dispossession, it is difficult to see how a subsequent dispossession can be held to be a part of his cause of action so as to attract the provision of O. 2, R. 2 Civil P. C.
9. The Calcutta High Court in Mahammad Hashim Ali Khan v. Iffat Ara Hamidi Begum, AIR 1942 Cal 180 has observed that the issue that can be raised in a suit instituted under the provisions of O. 21, C. P. C. must in essence be of the same nature as the issue in the claim case although the ambit of enquiry of that issue would be more detailed in the suit. In the execution proceedings the judgment debtor cannot challenge the validity of the decree under execution on the ground of fraud and the claimant can only urge that the property attached is his property and not of the judgment debtor. He cannot urge that the decree is bad or even the execution is barred by time. The issue viz., whether the property at the date of the attachment was the property of the judgment debtor or the claimant is the only issue in a suit under O. 21, R. 63, Civil P. C. is clear by the language of O. 21, R. 63, Civil P. C. itself, for that rule speaks of a suit to establish the right which he claims to the property in dispute relying on (1908) 35 Ind App 22 (PC). Their Lordships observed that a suit under O. 21, R. 63, Civil P. C. is in essence a review of the summary order passed by the executing court on the claim and is a mere continuation in a different form of the claim proceedings.
10. A Division Bench of this High Court in M. Venkata Subbamma v. G. Raja Rathamma, : AIR1959AP178 has held that in a suit under O. 21, R. 63, Civil P. C. in order to prove that the plaintiff has a right to the property in dispute and it is therefore not liable to attachment, the consideration of his title as well as possession will be relevant. The two questions cannot be separated one from the other.
11. Thus it is clear that in suits under O. 21, R. 63, C. P. C. the question that has to be gone into is the question of title and also the possession of the plaintiff. If the plaintiff fails to prove his title and his possession to the suit property on the date of attachment, he cannot get any relief in a suit under O. 21, R. 63, Civil P. C. except that the attachment was without jurisdiction or absolutely void.
12. Turning to the contention of the learned Advocate-General that as the plaintiff had been appointed as the Receiver and as the attachment had been effected without the consent of the court appointing such Receiver, the attachment is voidable, it is necessary to mention a few facts. The third defendant was appointed Receiver on 14th August 1951 for the purpose of filing suits and for taking steps to execute decrees if any. The order further relates that the plaintiff was assigned house No. 55 Trimulgherry Bazar, garages in Trimulgherry, and one house situate at Meetuguda, the rental of which amounted to Rs. 71 to realise those rentals as interim relief. It was admitted that he was collecting Rs. 37 by way of mortgage of Nirmal Ambarti Sidhanti house which would give him a sum of Rs. 105 which was roughly 1/3 of the rents according to the admission of all the parties to the partition suit. This order shows that the houses which likely to fetch 1/3 of the rental were allotted to the plaintiff's branch for maintenance and the balance to the defendants. The third defendant was succeeded by Mr. Ramanujam, Advocate as Receiver who was again succeeded by the plaintiff on 10th June 1957, while appointing the plaintiff as the Receiver a direction was given that the should collect the rental 'subject to the terms and conditions of the order dated 14-8-1951'. This order of 10-6-57 was carried up in revision to the High Court and in C. R. P. 1899/57 this court passed an order on 9-4-1958 directing the plaintiff to collect rents of all the joint family properties and deposit the same into court so that the parties may draw their respective shares for maintenance.
13. The first question that arises for consideration is whether the property was in the custody of any court or public officer so as to attract the provisions of O. 21, R. 52, C. P. C. The learned Advocate General relies on Thayumana Pillai v. Ramaswami Chettiar, 19 Mad LW 681 = (AIR 1925 Mad 51) and contends that even though the Receiver was appointed only for the purposes of collecting profits and rents, it should be deemed that the property was in the custody of the court. The property which was put to sale, was in the occupation of tenants and therefore no physical possession could have been given to the Receiver. The only manner in which the property could have been taken in possession by the Court appointing the Receiver, was to direct the Receiver to collect the profits and rents from such property.
In the case cited by the learned Advocate General, a Receiver had been appointed only of the crops and not of the corpus of the property but the learned Judges on the facts of the case reached the conclusion that the Receiver was appointed in that case for the property itself though the object of the appointment was only to collect the rents and profits of the land. This case is not clearly applicable to the facts of the case under consideration. In the instant case as the circumstances relating to the appointment of the Receiver show that it was never the intention of the Court appointment the Receiver to take the property in its custody. The question was whether during the pendency of the partition suit, some arrangements should be made for giving relief to the parties by way of interim maintenance. It is in this context that the Receiver was appointed to collect the rents from all the joint family properties. It cannot therefore be said that the court appointed the Receiver to the property itself. Further the import of the expression 'custody of the Court' in O. 21, Rule 52, Civil P. C. has also to be considered in this context.
14. The learned counsel for the respondents relying on Pratapmal Rameshwar v. Chunilal Johuri, AIR 1933 Cal 417 says that the said Rule is not intended to apply to a case where the Court appointed a Receiver of the rents and profits of the immovable properties, though in essence it may be said that the court when it appoints the Receiver takes possession of the property. The above cited case was considered in Shiva Sankar v. Ajit Kumar, (1963) 67 Cal WN 916 and it was held that where the court appoints in Receiver of the rents and profits of immovable property Order 21, Rule 52, Civil P. C. does not apply. We are in agreement with the view expressed by the Calcutta High Court. The question whether the court is in custody of the property, will have to be decided on the facts and circumstances of each case.
15. We now proceed to consider the legality of the attachment made by the Court assuming that the property was in the custody of the Court and that O. 21, R. 52, C. P. C. is applicable. It is contended that it is well settled that the property in the hands of a Receiver is exempt from judicial process except of course to the extent permitted by the appointing court. It is also contended that proceedings taken in respect of the property which is in possession and management of the Receiver appointed by the Court under Order 40, Rule 1, Civil P. C. without the leave of the court, are illegal in the sense that the party proceeding against the property without the leave of the court concerned is liable to be committed for contempt of court. Reliance for this proposition is placed on Kanhaiyalal v. Dr. D. R. Banaji, : 1SCR333 . In a suit instituted by the mortgagee of a plot situated in the Dist. of Yeotmal which was then situated in the Central Provinces and Berar to enforce the mortgage, a Receiver was appointed by the Bombay High Court on its original side in respect of the mortgaged property.
The land and the building were valued by the court at about Rs. 70,000. The revenue payable in respect of a part of the mortgaged property which was a plot admeasuring 1,91,64 sq-feet at the rate of Rs. 129 per year, remained in arrears for two years viz., 36-37 and 37-38. The Sub-Divisional Officer of Yeotmal sold at auction the plot in question free from all encumbrances on 17th December 1937 without impleading or giving notice to the Receiver. At that auction the appellant before the Supreme Court purchased the property for Rs. 270 only. The sale was confirmed in his favour on 26th January 1938 but it appears that the then Receiver had sent Rs. 475 by cheque to the Sub-Divisional Officer concerned in full payment of the arrears of land revenue and thus to have the sale set aside but it was received two days after the confirmation of sale. The Receiver had made an application on 19th January 1938 to the Sub-Divisional Officer offering to pay the arrears but it appears that the attention of the Sub-Divisional Officer was not drawn to the application until after the confirmation of sale. The Receiver then applied for review of the order confirming the sale and the Sub-Divisional Officer allowed the application and set aside the sale.
The said order was also upheld by the higher authorities. The auction purchaser moved in revision to the Financial Commissioner who vacated the order setting aside the sale. After that, the Receiver having ultimately failed in having the sale of the valuable properties by the Revenue authorities set aside, instituted a suit out of which the said appeal arose. He prayed for the declaration that the auction sale was void on a number of grounds that no notice of demand had been sent to the Receiver that the attachment and sale proclamation had not been effected according to law and though the Revenue Authorities were aware of the appointment of the Receiver, they did not implead the Court Receiver. The suit was contested on the preliminary ground that it was barred by the provisions of Sections 157 and 192 of the Berar Land Revenue Code of 1928, which plea found favour both with the trial court and the court of first appeal. On second appeal to the High Court at Nagpur, a single Judge allowed the appeal, which was confirmed by a Division Bench of that Court. It was contended before their Lordships of the Supreme Court that the sale without notice to the Receiver or without impleading him, was not void but only irregular and the suit was barred by the provisions of Sections 157 and 192 of the Berar Land Revenue Code. Their Lordships have observed in para 7:
'So far as the Indian Courts are concerned, it is settled law that a sale held without making attachment of the property, or without duly complying with the provisions of the law relating to attachment of property, is not void but only voidable. Rule 52 of Order 21 of the Code of Civil Procedure requires that where the property is in the custody of any court or public officer, attachment shall be made by a notice to such court or officer. But the absence of such a notice would not render the sale void ab initio, because the jurisdiction of the court or the authority ordering the sale, does not depend upon the issue of the notice of attachment. It is also settled law that proceedings taken in respect of a property which is in the possession and management of a Receiver appointed by court under Order 40, Rule 1 of the Code of Civil Procedure, without the leave of that court, are illegal in the sense that the party proceeding against the property without the leave of the court concerned, is liable to be committed for contempt of the court, and that the proceedings so held, do not affect the interest in the hands of the Receiver who holds the property for the benefit of the party who, ultimately, may be adjudged by the court to be entitled to the same. Their Lordships further observed in para 8;
'The general rule that property in custodia legis through its duly appointed Receiver is exempt from judicial process except to the extent that the leave of that court has been obtained, is based on a very sound reason of public policy, namely, that there should be no conflict of jurisdiction between different Courts. If a court has exercised its power to appoint a Receiver of a certain property, it has done so with a view to preserving the property for the benefit of the rightful owner as judicially determined. If other courts or Tribunals of co-ordinate or exclusive jurisdiction were to permit proceedings to go on independently of the Court which has placed the custody of the property in the hands of the Receiver, there was a likelihood of confusion in the administration of justice and a possible conflict of jurisdiction. The courts represent the majesty of law, and naturally therefore would not do anything to weaken the rule of law, or to permit any proceedings which may have the effect of putting any party in jeopardy for contempt of court for taking recourse to unauthorised legal proceedings. It is on that very sound principle that the rule is based. Of course, if any court which is holding the property in custodia legis through a Receiver or otherwise, is moved to grant permission for taking legal proceedings in respect of that property, the court ordinarily would grant such permission if considerations of justice require it. Courts of justice, therefore, would not be a party to any interference with that sound rule. On the other hand, all courts of justice would be only too anxious to see that property in custodia legis is not subjected to uncontrolled attack, while at the same time, protecting the rights of all persons who may have claims to the property'.
The question that was then considered was whether the Berar Land Revenue Code, in any way affected the general rule of law. Having reached the conclusion that the general rule of law was not so affected, their Lordships further observed:
'If the leave of the Bombay High Court had been taken to initiate proceedings under the Code, for the realisation of Government revenue, or if the Receiver had been served with the notice of demand, it would have been his bounden duty to pay up the arrears of land revenue and to continue paying Government demands in respect of the property in his charge in order to conserve it for the benefit of the parties which were before the Court in the mortgage suit. If such a step had been taken, and if the Receiver, in spite of notice, had allowed the auction-sale to be held for non-payment of Government demands, the sale would have been valid and subject only to such proceedings as are contemplated under Section 155 and 156 of the Code. In that case, there would have been no conflict of jurisdiction, and, therefore no question of infringing the sound principles discussed above.
But the absence of the leave of the court and of the necessary notice to the Receiver, makes all the difference between a valid and an illegal sale.'
A close reading of their Lordships' pronouncement shows that the rule of law is intended so that, the interests in the hands of the Receiver who holds the property for the benefit of the party who may ultimately be adjudged by the Court to be entitled to the same, are not affected. It has also been held that the sale in such cases is not valid but illegal. From the facts of the case also it is evident that a valuable property was sold for the recovery of a paltry amount of Rs. 270 which the Receiver would have paid in case a notice had been given to him for the payment of the same. The circumstance that weighted with the Supreme Court in setting aside the sale was that the interest of the mortgagee who was entitled to recover the mortgage money by sale of mortgaged property was affected by the revenue sale especially when such sale was free from all encumbrances. If the interest of the mortgagee not have been affected, the sale would not have been set aside, because it was only voidable and not void ab initio. When considering the facts of the case before us, it cannot be said that by virtue of the sale effected, the interest of the plaintiff in the property was in any manner affected. The 2nd defendant was an attaching creditor of the decree obtained by the 1st defendant against the third defendant. It is not disputed before us that the joint family property was liable for the execution of the decree obtained by the 1st defendant against the 3rd dependent. That being so, it is immaterial whether that decree was put in execution by the 1st defendant or 2nd defendant. There is also no material before us to show that the plaintiff has sustained any injury because of the sale of the property. No doubt the suit is for setting aside the attachment of the property but the sale having been effected during the pendency of the proceedings, the plaintiff could have very well brought to the notice of this court as to the injury that was caused to him by such sale, we are therefore of the opinion that in the circumstances of the case, the sale cannot be set aside.
16. Reliance was also placed by the learned Advocate-General on 19 Mad LW 681 = (AIR 1925 Mad 51); Rajagopala Venkata Narasimha v. Venkatalingam, 1944-1 Mad LJ 129 = (AIR 1944 Mad 372) and Veerappa Chettiar v. Mohamad Mytheen Mana Pillai, : AIR1963Mad33 . A reference to 19 Mad LW 681 = (AIR 1925 Mad 51) has already been made. In 1944-1 Mad LJ 129 = (AIR 1944 Mad 372) the Madras High Court has held that such a sale is voidable and that the circumstances will have to be considered to declare such sale as void and one such circumstance would be whether any injustice has been done. In one of the appeals that was considered in the said judgment being A. A. O. 484/42, their Lordships remanded the case to the trial court for consideration whether the sale should be set aside on the merits.
17. A Division Bench of the Madras High Court in : AIR1963Mad33 observed at page 35:
'While we do not want to be understood to lay down a proposition that the mere fact of failure to obtain leave will in itself be a ground for setting aside such a sale, we consider that the question of setting aside a sale will have to be decided on the particular facts and circumstances in each case'.
In view of the particular facts and circumstances of the case, the learned Judges thought it reasonable and just from the stand-point of the parties to set aside the sale on condition that an amount of Rs. 600 with interest at 6% per annum be paid to the purchaser by the judgment debtor. As already indicate there are no circumstances brought to our notice by reason of which we may say that any injustice was caused to the plaintiff by the attachment and subsequent sale of the property. In this context it will be pertinent to note that this issue, being issue 2 was not pressed by the learned counsel of the plaintiff and therefore neither any evidence was led nor any finding was given by the trial court on the merits of the case. Before us also the circumstances and facts which would enable us to find as to whether any injustice or injury was caused to the plaintiff, were not brought to our notice.
18. The learned counsel for the respondents has contended that even though no leave to proceed against the Receiver was granted by the court appointing the Receiver it can be implied in the circumstances of the case. His contention is that as the court which attached the properties and the court appointing the Receiver being the same, there was no necessity of a formal sanction. He has relied on Gain Chand v. Gopi Chand, AIR 1928 Lah 593 and Somasundaram Chettiar v. Parimal Kandar, AIR 1935 Mad 697. In both these cases in view of the peculiar circumstances existing, the High Courts same to the conclusion that it could not be said that the court ordering attachment was not aware of the appointment of the Receiver and therefore the sanction to attach should be implied but the facts of this case do not justify any such implication. Here the Receiver was appointed as far back as 1951 for the first time and the plaintiff was appointed Receiver in June 1957. It is not known whether the Presiding Judge who appointed the Receiver was also the Judged who ordered attachment. Where the personnel of the court have changed during the period these proceedings were pending it is very difficult to presume that the court had known of the appointment of the Receiver. We are not prepared to draw any such presumption, and also that the leave to attach was implied.
The learned counsel then submits that the leave can be granted even after the attachment has taken place because the attachment without leave is only an irregularity which can be cured. He has relied on 1944-1 Mad LJ 129 = (AIR 1944 Mad 372) where it has been held that retrospective leave can be granted in the absence of any law restricting the discretion of the court in these matters. The circumstances existing in this case go to show that if an application had been made to the court appointing the Receiver for leave to attach property, there is no reason why this application would not have been ordered by that court. The respondents have made an application C. M. P. 365/67 in this court for the grant of such leave. The contention of the learned Advocate General is that such leave cannot be granted after the sale has been confirmed. He relies upon G. F. F. Foulkes v. Suppan Chettiar, AIR 1945 Mad 13 for this proposition. In that case a Division Bench of the Madras High Court was considering whether the sale held without the leave of the court appointing Receiver is void or voidable and if it is voidable, such irregularity can be cured by sanction granted prior to the confirmation of sale. Having held that the sale was only voidable and that the leave had been obtained before the sale was finally confirmed, they go on to observe:
'We think therefore that if the law is that an illegality can be cured by leave obtained during the pendency of the suit, the same principle should rightly be extended to the case of a sale where, as in this case, the leave has been obtained before the sale has finally been confirmed'. And on the facts of that particular case, their Lordships did not see any reason at all that why that voidable sale should be set aside. The learned Advocate General relied on the observation of their Lordships that the proceedings of sale terminate with the confirmation of sale and nothing can be done later to remove any irregularity in such a sale. This case does not lay down specifically that such leave cannot be granted even after the confirmation of the sale. Assuming that such permission cannot be granted, the sale being voidable, the court can always consider the circumstances of the case as to whether the sale should be set aside. On the facts of the case before us we do not find any necessity to set aside the attachment. It is not necessary for us pass any order on the application filed for leave to attach.
19. The only other contention that remains to be considered is whether the attachment effect in the presence of an injunction order issued against defendant 1 not to execute decree obtained in O. S. 23/44, will make the attachment illegal. It is necessary to state certain facts. The plaintiff obtained an injunction order as against the 1st dependent restraining him from executing the decree obtained by him against the 3rd defendant in O. S. 23/44. There is nothing on record to show that defendant 2 who is only an attaching creditor was aware of this injunction order. Issue 4 was raised in this regard but as already stated was not argued and the trial court had therefore given no filing on the same. The learned Advocate General contends that even though no injunction order issued against the 1st defendant in view of the provisions of Order 21, Rule 53(3) of the Civil P. C. This sub-rule lays down that the holder of a decree sought to be executed by attachment of another decree, shall be deemed to be the representative of the holder of the attached decree and the attaching decree-holder will be entitled to execute such attached decree in any manner lawful to the holder thereof. The 2nd defendant here being the representative of the 1st dependent, he is bound by all orders passed against 1st defendant restraining him from executing the decree. He further contends that the sale of property held in breach of an injunction is illegal and is liable to be set aside. Oliver, (1903) ILR 26 Mad 260 and drew our attention to a passage on page 262 which says:
'The excuse given by this vakil that the sale on the 28th September `was the act of the revenue authorities' is futile if no worse'.
But that case cannot be cited in support of the proposition that a sale in such cases is void because it has been observed on the same page that the sale is illegal for reason other than breach of injunction. He also relied on Sitapat Ram v. Mahabir Prasad, AIR 1925 Oudh 424 and Mandar Das v. Atma Ram, AIR 1932 Lah 515. In the Oudh case as injunction had been issued by the court in which a declaratory suit was pending in respect of the property attached and sold, that the sale of property should be stayed. When that injunction reached the court executing the decree, that court refused to set aside the sale but added that sale would not be confirmed till the decision of the declaratory suit. It was observed that the injunction granted by the Addl. Subordinate Judge had the effect of stopping the sale altogether during the pendency of the declaratory to suit. It was granted by a court competent jurisdiction and was therefore binding and in such cases the sale is a nullity.
In the Lahore case an injunction order was issued by the Delhi Court to the Ambala Court where the sale was being held that the sale should not be confirmed. Broadway, Acting C. J., in the circumstances held, that the Ambala Court acted without jurisdiction in refusing to give effect to the injunction issued by the Delhi Court.
20. The Oudh and Lahore cases cited above have been considered by the Lahore High Court in a later case in Lal Chand v. Sohan Lal, AIR 1938 Lah 220. The learned Judge observed on page 221:
'A temporary injunction under the provision of R. 1, O. 39 C. P. C. is not a stay order issued by a court competent to stay execution proceedings under any provision of the Code authorising such an order .......... The effect of non-compliance with an injunction issued under O. 39 is to make the offender liable to the punishment prescribed in sub-rule (3) of R. 2 of that order ..... .....and that is the only effect.................'
His Lordship further held that there was no statutory authority for the proposition that a completed sale in contravention of an injunction order O. 39, R. 1 is a nullity. As regards AIR 1932 Lah 515 his Lordship observed that he was not convinced that the sale in contravention of an injunction is a nullity as being without jurisdiction. His Lordship also disagreed with AIR 1925 Oudh 424.
21. The learned counsel for the respondents in reply contended that an order of injunction acts in personam and unless it is proved that there was an order against the 2nd defendant and he was served with that order, any proceedings taken by him, cannot be vitiated because in that case there will be no contravention of the order of injunction. He relied on S. N. Banerjee v. Kuchwar Lime and Stone Co. Ltd., AIR 1938 PC 295. Their Lordships of the Privy Council were considering an application to punish the Secretary of State for India in Council, S. N. Ghose and S. N. Banerjee for contempt of Court. The reason for the petition was that on 1st April 1928, the Secretary of State granted to the petitioners, two leases One of the mineral rights in Lower Murli Hill and the other of the surface and mineral rights in Upper Murli Hill for a period of 20 years. The respondents purchased the surface rights in the lower Murli Hill from the local Zamindar. The respondent-company went into voluntary liquidation and on 30th September entered into a written agreement with one S. G. Bose for the sale to him of their right under the two leases. In October the same year the respondents who had acquired the surface rights in lower Murli Hill sold those rights to Bose and applied to the Collector of Shahabad for permission to assign the lease to him. On the same day Bose started quarrying operations. The Sub-Divisional Officer of Sasarao on 6th December 1933 refused permission to assign and directed Bose to stop work. On 20th April 1934 the Commissioner of the Division informed the respondents solicitors that the Government formally confirmed the forfeiture on 18th July 1934. S. N. forfeiture on 18th July 1934. S. N. Ghose as Managing Director of the Kalyanpur Lime Works, Ltd. having heard the termination of the leases, applied to the Collector on behalf of his Company to take leases of the properties. The Board of Revenue accepted the offer and forwarded a copy of the same to S. N. Banerjee who was the Manager of that Company.
On receiving the copy of the letter, the Kalyanpur Company took possession of the quarries in April 1934. On 21st April 1934 S. N. Banerjee informed the respondents that the Board of Revenue had sanctioned the leases to Kalyanpur Company. In September 1934 the respondents brought a suit against the Secretary of State for a declaration that their leases had not been validity forfeited and for an injunction restraining the Secretary, his servants and agents, from granting leases to the Kalyanpur Company. The Subordinate Judge dismissed the suit. On appeal the High Court allowed the appeal and held that the two leases had not been validity forfeited and ordered that there should be an injunction restraining the defendant and his servants from interfering with the respondents leases on the basis of the forfeiture claimed. The appeal filed by the Secretary of State to the Privy Council was also dismissed. There is no doubt that the Kalyanpur Company was aware of the granting of the injunction right from the date of pronouncement but the said company acting on the contention that they were not bound by the injunction, resumed quarrying operations in March 1936. The petitioners (respondents) thereafter filed application for contempt against the Secretary of State, Ghose and Banerjee for disobeying the injunction of the High Court. The High Court allowed the application, declared the three appellants guilty of contempt. The Privy Council held that the Secretary of State was not guilty of contempt of court. As regards the two officers of the Kalyanpur Company, it was argued that they were guilty of contempt in view of the principle set out in Avery v. Andrews, (1882) 51 LJ Ch 414 and Seaward v. Paterson, (1897) 1 Ch 545; but their Lordships observed:
'In terms however, those cases limit the offence of contempt by a person not a party to the injunction to cases where its they aid and abet the party enjoined in its breach. Where as here that party has not broken the injunction it is impossible to hold that anyone has aided or abetted them in breaking it.'
They went to observe that the respondents sought to avoid this difficulty by maintaining that the doing by anyone of an act which was forbidden by the injunction was itself an offence.
'Their Lordships can find no authority for so wide a proposition. It is certainly not enunciated or indeed hinted at in the cases referred to, nor do they think it is sound in principle..............Ghose and Banerjee are not the servants of the Secretary of State and therefore did not do anything forbidden by the injunction. The utmost which the respondents could say was that the Kalyanpur Company, having derived their supposed interest from the Secretary of State, who had been forbidden to interfere with the respondents' lease, were acting against the spirit if not the letter of the injunction in taking or continuing in possession of the quarries, and were therefore guilty of contempt in interfering with the respondents' lease. The fact however that Ghose and Banerjee claimed on behalf of their Company to derive title, rightly or wrongly (and their Lordships will assume wrongly) through the Secretary of State, cannot in their view make them liable for an act not forbidden to them though forbidden to him.'
This authoritative pronouncement of the Privy Council is the complete answer to the contention of the learned Advocate General that defendant 2 being the representative of defendant 1 is bound by the injunction and could have been proceeded in contempt for the breach of it. AIR 1938 PC 295 was followed by a Special Bench of the Patna High Court in Pratap Udai Nath v. Saralal Durga Prasad, AIR 1949 Pat 39 (SB), it was held:
'Equity acts in personam and an injunction is a personal matter, The ordinary rule is that it can only be disobeyed in contempt by persons named in the writ'.
22. The Calcutta High Court also in P. K. Kripalani v. Mahabir Ram, : AIR1952Cal452 followed AIR 1938 PC 295.
23. In view of the aforesaid pronouncements we are of the opinion that as there was no order of injunction against defendant 2, it cannot be said that there was any breach of the injunction order so as to vitiate the attachment made in execution proceedings taken by him. There is no evidence to show that he was aware of the injunction order passed against defendant 1.
24. As far as the question whether sale in violation of an injunction order vitiates the transaction. our High Court has held that it does not. It is pertinent to note that there is no provision vitiating the sale in breach of an injunction order similar to Section 64, Civil P. C. This question came up for consideration in C. Subramanyam v. Gadipalli Narasimhaiah, 1963 (1) Andh WR 135 where a Division Bench of this Court observed that the consequence of disobedience of an injunction is not to render the transaction entered into between the person against whom the injunction was issued and a third party altogether void but to punish the wrong-doer as contemplated by Order 39, R. 2 (3), Civil P. C. The said provision was contrasted with Section 64 and it was observed:
'It is manifest that this section (S. 64, Civil P. C.) invalidates transfer of any property which is subject to attachment. But, that is not the position with regard to an injunction issued under Order 39, R. 2, Civil P. C. When a person acts in violation of the injunction, he is liable to be punished under Order 39, R. 3, Civil P. C. as indicated above. That being the real position, the transaction would only amount to an irregularity...........'
In Taraporwala v. Karim Ali, : AIR1966AP361 a Single Judge of this High Court referred to the case cited above and held that a sale in disobedience of an injunction would be an irregularity and would not be illegal. In both the cases it was held that the consequence of such a sale may be different if it was established that the transferor and the transferee acted in collusion and with a view to disobey the orders of the court. In the instant case no such evidence has been led and there is no such allegation also. The learned Advocate General tried to distinguish the aforesaid two cases on the ground that in both those cases, this court was considering a case a private sale. The principles applied to the private sale cannot be applied to sale through the court. We do not find ourselves in agreement with the distinction tried to be made by the learned Advocate General. In principle such a distinction cannot be drawn. In AIR 1938 Lah 220 Coldstream, J. was considering a case of a court sale and had held that sale in contravention of an injunction is not nullity.
25. The learned counsel for the respondents also argued that as the property has been sold in execution of the decree, even assuming that the attachment was invalid the sale cannot be set aside on that ground. His contention is that the absence of attachment, does not make the sale void. For this proposition he relied upon a Full Bench Decision of this Court in Satyanarayana Murthy v. Bhavanarayana, 1957-1 Andh WR 233 = (AIR 1957 Andh Pra 185) (FB). The Supreme Court in : 1SCR333 has observed on page 727;
'So far as the Indian courts are concerned, it is settled law that a sale held without making attachment of the property, or without duly complying with the provisions of the law relating to attachment of property, is not void but only voidable'.
We are in respectful agreement with the position of law as laid down by the Full Bench of this High Court and the Supreme Court.
26. It is not necessary to consider the contention advanced by the learned Advocate-General on the strength of Mt. Bibi Umatul Rasul v. Mt. Lakho Kuer, AIR 1941 Pat 405 and Ramachander Singh v. Raghopati Sahai, AIR 1945 Pat 189 that in case the attachment is set aside under Order 21, Rule 63, Civil P. C. the subsequent sale even though confirmed, fails, cannot be given effect to because us, no sufficient grounds have been brought to our notice so as to set aside the attachment made.
27. In the result we hold that the attachment made is valid. Even assuming that it was irregular, as no evidence has been brought on record to show that such attachment resulted in any injury or loss to the plaintiff and as the sale in such cases is voidable, we do not find any reason to set aside the attachment. The appeal therefore fails and is dismissed with costs of the 4th Respondent.
28. Appeal dismissed.