Skip to content


Karan Singh Vs. Ram Sahai and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil ;Property
CourtAllahabad
Decided On
Reported inAIR1941All41
AppellantKaran Singh
RespondentRam Sahai and anr.
Excerpt:
.....the school run by cantonment board being covered under rule 2 (f) of the cantonment fund servants rules, 1937 can file appeal under rules 13, 14 and 15 to authorities provided therein against any order imposing any penalties etc. [deolali cantonment board v usha devidas dongre, 1993 mah. lj 74; 1993 lab ic 1858 overruled]. -- maharashtra employees of private 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..........our judgment, the learned district judge has clearly misdirected himself in law. under order 38, rule 7 attachments before judgments shall be made in the manner provided for the attachment of property in execution of a decree. the attachment of property in execution of a decree is governed by order 21, rule 54. order 21, rule 54 provides that:where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.2. sub-rule (2) of order 21, rule 54, is as follows:the order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a.....
Judgment:

Thom, C.J.

1. This is a plaintiff's appeal arising out of a suit for possession of zamindary property. The plaintiff alleged that he attached the property in suit on 30th March 1930. The attachment was made before judgment in a suit which was filed on 29th March 1930. The defendant alleged that he had entered into an agreement with the owner of the property Mt. Kalawati to purchase it. This agreement was concluded according to the defendant on 26th March 1930. The learned District Judge has found that there was no oral agreement on 26th March 1930 but that there was a written agreement to purchase the property of 3lst March 1930. In other words the agreement to purchase was entered into upon the day after the alleged attachment of the property. Despite the order of attachment which certainly was issued on 29th March 1930 and which was proclaimed by beat of drum and affixed upon the property in suit on 30th March 1930 the learned District Judge has dismissed the suit. He has done so upon the ground that no notice of the interim order of attachment which was passed on 29th March 1930 was served upon Mt. Kalawati. Apparently Mt. Kalawati was not at her usual place of residence upon that date and the order calling upon Mt. Kalawati to show cause why her property should not be attached was only served upon her counsel on 5th April 1930. The learned District Judge held that in the circumstances there was no valid attachment of the property in suit. In this, in our judgment, the learned District Judge has clearly misdirected himself in law. Under Order 38, Rule 7 attachments before judgments shall be made in the manner provided for the attachment of property in execution of a decree. The attachment of property in execution of a decree is governed by Order 21, Rule 54. Order 21, Rule 54 provides that:

Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.

2. Sub-rule (2) of Order 21, Rule 54, is as follows:

The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous 'part of the property and then upon a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate.

3. Sub-rule (3) enjoins:

The order shall take effect as against purchasers for value in good faith from the date when a copy of the order is affixed on the property, and against all other transferees from the judgment-debtor from the date on which such order is made.

4. It will be observed that there is no direction in Order 21, Rule 54, that a copy of the prohibitory order shall be served upon the defendant. All that is enjoined is that the order shall beproclaimed and affixed. If the order is proclaimed and affixed therefore the attachment is complete and valid. If it were necessary to serve an interim prohibitory order pending the return of notice of the application for attachment such an interim order would afford little protection to the rights of the applicant. There is no warrant for the proposition that an attachment is not complete until notice of the prohibitory order is served upon the owner of the property. The practice is perfectly plain, simple and straightforward. A party desiring attachment comes into Court and prays for an attachment order. The Court issues notice and if requested may graat an interim order of attachment. It is then for the person against whom the attachment is made to appear in Court and show cause why the interim order should not be made absolute. In the meantime for the protection of the applicant the interim order has effect in accordance with the provisions of Order 21, Rule 54(2). So far as purchasers for value in good faith are concerned the order of attachment in these provinces has effect from the date when a copy of the order is affixed upon the property and so far as all other transferees are concerned from the date upon which the order is made. There is no provision in the Civil Procedure Code for the serving of the actual order of attachment upon the owner of the property attached; though there is of course provision for the service of notice of an application of attachment. Accordingly we hold in the present case that the property in suit was validly attached, upon 30th March 1930 when the notice of the interim order was proclaimed and affixed as directed by Order 21, Rule 54.

5. Part of the purchase price of the sale of the property in favour of the respondent by Mt. Kalawati is alleged by the respondent to be the amount due under the mortgage bond. In the circumstances of the present case we were invited by counsel for the respondents to adjust the equities as between the parties and. to grant possession of the property to the plaintiff only upon the condition that the amount due under the mortgage bond was paid by him to the respondent. The Court would not be justified in granting this request. The respondent must pursue his remedy against the mortgaged property in the ordinary way by means of a suit upon his mortgage. We are unable to say from the information before us what defence there may be to such a suit. The appellant may be in a position to oppose the claim under the mortgage. The appellant is entitled to unconditional possession of the property which he attached upon 30th March 1930, before judgment in his suit and which he subsequently purchased in execution of the decree which he obtained in that suit.

6. One further point was urged on behalf of the respondent. Mt. Kalawati under her contract with the respondent surrendered her sir rights. The respondent alleges that he paid Rs. 1000 for these sir rights. The learned District Judge observes in the course of his judgment that Rs. 1000 was paid by the respondent for the sir rights; but apparently no evidence was led upon the question and the Judge simply repeated the allegation of the respondent. We do not know the value of these sir rights and in any event even if the surrender of the rights be regarded as an improvement of the property the appellant has intimated to the Court through his counsel that he does not wish to acquire these rights. The position is therefore that the sale and the surrender in favour of the respondent by Mt. Kalawati are invalid and the plaintiff having purchased the property which he had attached before judgment in execution of his decree is entitled to unconditional possession. The property of course will be subject to the respondent's rights under his mortgage and to any claims which Mt. Kalawati may have in respect of her sir rights. In the result the appeal is allowed, the order of the learned District Judge is set aside and the decree of the trial Court is restored. The plaintiff is entitled to his costs.


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