Skip to content


Firm Surajbali Ram Harakh Vs. Mohar Ali and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1941All212
AppellantFirm Surajbali Ram Harakh
RespondentMohar Ali and ors.
Excerpt:
.....schools (conditions of service) regulations act, 1978 [act no. 3/1978]. sections 9 & 2(21): jurisdiction of school tribunal whether a school run by cantonment board is not a recognised school within the meaning of section 2(21)? - held, the act is enacted to regulate recruitments and conditions of employees in certain private schools and provisions of the act shall apply to all private schools in the state whether receiving any grant-in-aid from the state government or not. private school is defined in section 2(2) of the act as a recognised school established or administered by a management other than the government or a local authority. recognised means recognised by director, the divisional board or state board. thus as far as the first part of the definition of being..........sale of such property.7. the argument of the learned counsel is that when after the passing of a decree an attachment is to be made by the executing court, outside its own jurisdiction, it can send a precept direct to any other court competent to execute the decree under section 46, civil p.c., without the intervention of the district court. and order 38, rule 7 lays down that attachment shall be made in the manner provided for the attachment of property in execution of a decree. he therefore argues that these two sections read together are an authority for the proposition that when property is to be attached before judgment outside the jurisdiction of the court ordering the attachment, it can send a precept direct to the court of its own status without the intervention of the district.....
Judgment:

Dar, J.

1. Firm Surajbali Ram Harakh instituted a Suit No. 437 of 1933 in the Court of Munsif of Bansi for recovery of a sum of money against Munishwar Kolapuri and others. During the pendency of the suit, on the application of Firm Surajbali Ram Harakh, the Munsif of Bansi, on 12th May 1933 passed an order of attachment before judgment, of certain immovable property owned by Munishwar Kolapuri and others. This property was situated outside the jurisdiction of the Munsif of Bansi. Accordingly a request was made by the Munsif of Bansi to the Munsif of Gorakhpur, within whose jurisdiction the said property was situated, to attach the property and on 21st May 1933 the Munsif of Gorakhpur carried out the attachment. After the attachment and in due course the suit was tried by the Munsif of Bansi and resulted in a decree in favour of Firm Surajbali Ram Harakh who after obtaining the decree proceeded to execute the decree against the property which had already been attached. In this they were resisted by Mohar Ali Khan and others who claimed to have purchased the property under a sale deed dated 3rd October 1934, executed by Munishwar and others and one Gopi who was not a party to Suit No. 437 of 1933, in favour of Kariman, father of Mohar Ali Khan and others.

2. In order to establish the validity of this sale, Mohar Ali Khan and others raised an action in the Court of the Additional Munsif of Gorakhpur for a declaration that Firm Surajbali Ram Harakh was not entitled to execute the decree against Munishwar and others by selling the property which was attached before judgment on 2lst May 1933 and which had been sold to their father on 3rd October 1934. To this suit, Firm Surajbali Ram Harakh were made defendant 1 and Munishwar and others were made defendants 2 to 14 and the main contest in the case was between the plaintiff who claimed to have purchased the property under the sale of 1934 from Munishwar and others and Firm Surajbali Ram Harakh who were the decree-holders in Suit No. 437 of 1933 and who had attached the property before judgment. A number of questions arose about the validity of the purchase made by Mohar Ali Khan and others and about the validity of attachment made by the Firm Surajbali Ram Harakh, but it is not necessary to mention all of them for the purposes of this judgment. One matter in controversy was whether the attachment made by the Munsif of Gorakhpur was validly and properly made or, in other words, whether the Munsif of Gorakhpur had any authority in law to make the attachment or not at the request of the Munsif of Bansi.

3. The trial Court found in favour of Firm Surajbali Ram Harakh's contention, that is, in favour of the validity of attachment and consequently it dismissed the suit. The learned civil and Sessions Judge of Gorakhpur in appeal found against the validity of attachment and in favour of Mohar Ali Khan and others' contention and consequently he decreed the claim and granted such reliefs as were available to plaintiffs on findings on other part of the case. The Firm Surajbali Ram Harakh has made a second appeal to this Court and the question for consideration is whether the attachment made by the Munsif of Gorakhpur in circumstances mentioned above, was unauthorized and invalid or not. It is conceded that if the view of the lower appellate Court about the invalidity of the attachment be accepted as correct, no other point arises in the case and the appeal would fail.

4. This raises the question as to what are the powers of a Court when it wants to attach property before judgment which is situated outside its jurisdiction. It is not disputed that the Court has power to order attachment of property outside its own jurisdiction. It is also not disputed that the Court passing the order of attachment cannot directly attach property outside its own jurisdiction and it can only ask the Court in whose jurisdiction the property actually is to carry out the order of attachment and complete the formalities of attachment. Now, over the property which is sought to be attached, a number of Courts may be exercising concurrent jurisdiction. In each district ordinarily there is a District Court, a civil and Sessions Judge's Court, a Munsif's Court, a Small Cause Court and there may be a number of additional Courts. When the Court orders attachment of property outside its jurisdiction, which Court it should ask to carry out the attachment? Firm Surajbali Ram Harakh's contention is that it can ask any one of these Courts according to its wish to make the attachment. Alternatively it is contended that it can and should ask the Court which corresponds to it in status and where the immovable property is situated. The contention of Mohar All Khan and others is that it can ask the District Court and District Court alone to make the attachment and a request made to any other Court and attachment made by any other Court at the direct request of the Court ordering the attachment without the intervention of the District Court, would be unauthorized and invalid. In my opinion the contention of Mohar Ali Khan and others is right and it is supported by Section 186, Civil P.C., which is as follows:

Section 136. (1) Where an application is made that any person shall be arrested or that any property shall be attached under any provision of this Code not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made, the Court may, in its discretion, issue a warrant of arrest or make an order of attachment and send to the District Court within the local limits of whose jurisdiction such person or property resides or is situate a copy of the warrant or order together with the probable amount of the costs of the arrest or attachment.

(2) The District Court shall, on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by a Court subordinate to itself, and shall inform the Court which issued or made such warrant or order of the arrest or attachment.

(3) The Court making an arrest under this section shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the latter Court, or unless he furnishes sufficient security for his appearance before the latter Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him.

(4) Where a person to be arrested or moveable property to be attached under this section is within the local limits of the ordinary original civil jurisdiction of the High Court of Judicature at Fort William in Bengal or at Madras or at Bombay, the copy of the warrant of arrest or of the order of attachment, shall be sent to the Court of Small Causes of Calcutta, Madras (and Bombay) as the case may be, and that Court, on receipt of the copy and amount, shall proceed as if it were the District Court.

5. This section, as I read it, enjoins that where property is situated outside the local limits of the jurisdiction of the Court to which an application for attachment is made before judgment and the Court in its discretion makes an order of attachment, it has to send the order of attachment to the District Court and the District Court, on receipt of the order has to cause the attachment to be made by its own officers or by a Court subordinate to the District Court and after making the attachment the District Court has to inform the Court which had ordered the attachment, of its compliance. As I read the section, it is not open to the Court which should order the attachment of property outside its jurisdiction to send its order for compliance directly to any other Court except the District Court and an attachment made by any Court except the District Court and without the intervention of District Court, would be unauthorized and invalid. Learned Counsel for the Firm Surajbali Ram Harakh contends that application for attachment before judgment is made under Order 38, Rule 5, Civil P.C., and Order 38, Rule 7, Civil P.C., is as follows:

Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

6. And Section 46, Civil P.C., is as follows:

(1) Upon the application of the decree-holder, the Court which passes the decree may, whenever it thinks fit, issue a precept to any other Court which would be competent to execute such decree to attach any property belonging to the judgment-debtor and specified in the precept.

(2) The Court to which a precept is sent shall proceed to attach the property in the manner prescribed in regard to the attachment of property in execution of a decree:

Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.

7. The argument of the learned Counsel is that when after the passing of a decree an attachment is to be made by the executing Court, outside its own jurisdiction, it can send a precept direct to any other Court competent to execute the decree under Section 46, Civil P.C., without the intervention of the District Court. And Order 38, Rule 7 lays down that attachment shall be made in the manner provided for the attachment of property in execution of a decree. He therefore argues that these two sections read together are an authority for the proposition that when property is to be attached before judgment outside the jurisdiction of the Court ordering the attachment, it can send a precept direct to the Court of its own status without the intervention of the District Court. I do not agree. Order 38, Rule 7 deals only with the manner of the attachment and it does not provide for the authority which will order the attachment or for the authority which will receive the order of attachment and make the actual attachment and Section 46 only applies for matters which arise after a decree has been made and the precept issued thereunder operates only for two months unless the time is extended by the Court sending the precept.

8. In my opinion, these provisions have no application to the case and the present case is governed by Section 136, Civil P.C. Learned Counsel further argues that Section 136, Civil P.C., is not prohibitory and there remains inherent jurisdiction in the Court which has ordered the attachment to bring about attachment by any Court of its own choice which is available or suitable for the purpose. Whatever might have been the position if Section 136 had not been there, in the presence of Section 136 in the Civil P.C., this argument is not maintainable. The Code has specifically provided for the contingency which has arisen in the case and there is no room for the application of powers arising under inherent jurisdiction. I have discussed the matter at length as no cases were cited at the Bar, and I was informed that the question was one of general importance and one of first impression, but having looked in the matter for myself, I find that there are three cases in which substantially the same construction was put upon Section 136 as I have given above : see Bansropan v. Emperor ('37) 24 A.I.R. 1937 Pat. 603, Desraj Chananlal v. Ram Jasrar ('37) 24 A.I.R. 1937 Rang. 367 at p. 369 and M.S.M.M. Chettyar Firm v. Maung Sain ('31) 18 A.I.R. 1931 Rang. 279. The appeal fails and is dismissed with costs. Leave to appeal under Letters Patent is granted.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //