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Sri Krishna Gupta and anr. Vs. Shri Ram Babu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 3456 of 1961
Judge
Reported inAIR1967All136
ActsCode of Civil Procedure (CPC) , 1908 - Sections - 64 and 94 - Order 38, Rule 5 and 5(3) - Order 21, Rules 7 and 54 - Order 48, Rule 3
AppellantSri Krishna Gupta and anr.
RespondentShri Ram Babu and ors.
Appellant AdvocateShanti Swarup Bhatnagar, ;Yogi Raj and ;K.C. Saksena, Advs.
Respondent AdvocateM.P. Mehrotra, Adv.
DispositionAppeal dismissed
Excerpt:
civil - attachment of property - order 38 rule 5, order 21 rule 54 and sections 64 and 94 of code of civil procedure, 1908 - order for attachment of property can be made only after following the entire procedure prescribed under the act. - - , a private transfer of the property by the judgment-debtor is prohibited 'where an attachment has been made'.the defendants-appellants therefore, can get benefit of this section in case they are able to prove that 'attachment had been made' in 1950. under section 94 of the same code, a court has power, at any stage of the suit, in order to prevent ends of justice from being defeated, to 'order attachment of any property'.there is thus no doubt that the court had power to order an attachment before judgment. - rule 5. (1) where, at any stage of a.....b. dayal, j.1. this second appeal by the defendants has been referred to a division bench by a learned single judge of this court as an important question relating to the validity of the attachment was to be decided. the facts of the case are not in dispute and may be stated briefly as follows : one pt. babulal misra (defendant no. 1) was the owner of house no. 86/155 raipurwa, kanpur city. l. srikri-shna gupta and l. mahabir pd. gupta (defendants nos. 2 and 3) filed a suit (suit no. 174 of 1950) for realisation of money against defendant no. 1. on the 2nd of may, 1950 they applied for attachment before judgment of the house in question. the trial court, on the said application, passed the following order: 'issue notice and attach meanwhile'. this is ext. 3 on the record. on the 3rd of.....
Judgment:

B. Dayal, J.

1. This Second Appeal by the defendants has been referred to a Division Bench by a learned single Judge of this Court as an important question relating to the validity of the attachment was to be decided. The facts of the case are not in dispute and may be stated briefly as follows : One Pt. Babulal Misra (defendant No. 1) was the owner of house No. 86/155 Raipurwa, Kanpur city. L. Srikri-shna Gupta and L. Mahabir Pd. Gupta (defendants Nos. 2 and 3) filed a suit (suit No. 174 of 1950) for realisation of money against defendant No. 1. On the 2nd of May, 1950 they applied for attachment before judgment of the house in question. The trial court, on the said application, passed the following order: 'Issue notice and attach meanwhile'. This is Ext. 3 on the record. On the 3rd of May, 1950 notice was issued against defendant Pt. Babulal Misra prohibiting him from alienating the property (Ext. 4). On the same date, a warrant of attachment was also issued (Ext. B-9) specifying the details of the property and directing the Aminto effect an attachment. On the same date, the Amin went to the spot and according to his report (Ext. B-8) he announced attachment by beat of drum and effected attachment 'according to law'. In this report he does not specify what he did to effect attachment 'according to law' beyond announcing attachment by beat of drum. Along with this report, he submitted to the court (Ext. B-7) a description of the house with its boundaries etc. The notice (Ext. 4) which had been issued to the defendant on the 3rd of May, 1950 was returned unserved on the 13th of July, 1950 as the defendant was not available and the house was locked and it was not known when the defendant would return (vide Ext. 2 report of the process server). Nothing further seems to have been done in pursuance of this application for attachment before judgment. In this situation, Pt. Babulal Misra probably never knew that the house had been attached before judgment and executed a mortgage deed of the house on the 16th of July, 1953 in favour of the plaintiffs respondents. After execution of the mortgage the house was put up for sale in execution of the money-decree in suit No. 174 of 1950 which L. Sri Krishna Gupta and L. Mahabir Pd. Gupta obtained afterwards against Pt. Babulal Misra. This property was purchased by the decree-holders on the 18th of December, 1956 in execution case No. 10 of 1954. The present plaintiffs mortgagees then filed the present suit on the basis of this mortgage for realisation of the mortgage money along with interest etc. from defendant No. 1 Pt. Babulal Misra and also impleaded L. Sri Krishna Gupta and L. Mahabir Pd. Gupta as subsequent transferees of the property on the allegation that at the time of their purchase in the year 1956, they had full knowledge of the existence of the mortgage and were bound by it.

2. Pt. Babulal Misra admitted the plaintiff's case and denied any attachment before judgment in suit No. 174 of 1950. But the other two defendants (the appellants) plead that the property had alredy been attached before judgment in 1950 and hence the mortgagees could not claim a right superior to that of the defendants who had purchased the mortgage property in execution of their decree and had acquired a right under the attachment which was prior to the mortgage. On behalf of the plaintiffs, it was pleaded that (i) there was no valid attachment order under Order 38, Rule 5 C. P. C. and (ii) that in any case, the property was not, in fact, attached according to law and hence defendants Nos. 2 and 3 could not claim any benefit out of that attachment.

3. The trial court held that there was a valid attachment although there may have been some irregularities and that the plaintiffs could not claim a right superior to that of defendants Nos. 2 and 3. The court, therefore, granted a simple money decree against defendant No. 1 and dismissed the suit with costs against defendants Nos. 2 and 3. The plaintiffs filed an appeal, which was heard by the IVth Addl. Civil Judge, Kanpur. The learned Judge differed from the trial court, allowed the appeal and decreed the suit with costs against all the defendants. Defendants Nos. 2 and 3, the auc- tion purchasers have now come up in second Appeal.

4. The only point contended for in this appeal is that defendants Nos. 2 and 3 are entitled to the benefit of the alleged attachment before judgment.

5. Under Section 64 of the C. P. C., a private transfer of the property by the judgment-debtor is prohibited 'Where an attachment has been made'. The defendants-appellants therefore, can get benefit of this section in case they are able to prove that 'attachment had been made' in 1950. Under Section 94 of the same Code, a court has power, at any stage of the suit, in order to prevent ends of justice from being defeated, to 'order attachment of any property'. There is thus no doubt that the court had power to order an attachment before judgment. But the question is whether the attachment was, in fact, effected. In order to determine at what point of time it can be said that the attachment had been effected according to law, we have only to refer to the pronouncement of their Lordships of the Privy Council in Muthiah Chetti v. Palaniappa Chetti, 1928-26 All LJ 616: (AIR 1928 PC 139). That was also a case where the mortgagee had filed a suit for recovery of money on the mortgage dated the 19th of March, 1910. Respondents Nos. 5-10 or their predecessors were alleged to have filed a suit on 14-2-1910 against the mortgagors and on 14-3-1910 they made an application for attachment before judgment. On 18-3-1910 the court passed an order for a conditional attachment. It will thus be seen that the mortgage itself was created on the next date after the passing of the order of the conditional attachment. It was found by the Courts in India that in pursuance of this order of conditional attachment, no further step was taken as the plaintiff had not deposited costs. But the parties to the suit got an impression that the property had been attached and this attachment was made absolute on the 4th of April, 1910, as no objection to the attachment had been filed. In these circumstances, two questions reached for decision before the Judicial Committee. One was a question of limitation as it was pleaded that under Article 11, Schedule I of the Limitation Act, the mortgagee, who wanted to avoid the order of attachment should have filed a suit under Order 21, Rule 63 C. P. C. within one year from 'the date of the order'. That order of attachment not having been set aside either at the instance of the judgment-debtor or the mortgagee, who was a transferee from the judgment-debtor. It was contended that the same object could not be achieved in this belated suit on the basis of the mortgage. This contention was repelled by their Lordships of the Judicial Committee. In this connection, their Lordships had to determine whether the property had been attached. Their Lordships reviewed the provisions of Order 21 and observed:-

'These instances go to show that under the Civil Procedure Code in India the most anxious provisions are enacted in order to prevent a mere order of a Court from effecting attachment,and plainly indicating that the attachment itself is something separate from the mere order, and is something which is to be done and effected before attachment can be declared to have been accomplished.'

Their Lordships then proceeded to consider the provisions of Order 21, Rule 54 C. P. C. which lays down the procedure for attachment of property and at the end observed:-

'No property can be declared to be attached unless first the order for attachment has been issued, and secondly in execution of that order the other things prescribed by the rules in the Code have been done.'

Their Lordships then reverted to the argument regarding the validity of the order of attachment and the necessity of having it set aside before the plaintiff in the mortgage suit could claim that the property, in fact, had not been attached. Their Lordships observed as follows:-

'For the case before the Board is not that the order was defective in form; the order was from the beginning a nullity ....... But thisnew suit is said to be barred by the fact that it is out of time, because of the order of attachment, which subjects those bound by it to a limitation of twelve months from the order, that is to say, in this case from a thing which was a nullity.'

6. From this case, two things are quite clear (i) that no attachment comes into existence unless the whole procedure prescribed by law for making an attachment in the particular case has been gone through & (ii) that if no attachment comes into existence according to the procedure prescribed, any step taken towards the achievement of that object is a mere nullity which has no effect on the property. In this light, we will now examine the provisions of the Code and see whether they have been followed in the present case. The procedure for attachment before judgment is prescribed under Order 38, Rules 5, 6 and 7 of the C. P. C. which are as follows:-

Rule 5. (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 mav 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 appear 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 estimated value thereof.

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

Rule 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.

Rule 7--Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

7. It is important to note that under Rule 5 above, the court has to be satisfied on the questions mentioned in (a) or (b) of Sub-rule (1) and if so satisfied, the court is bound to ask the defendant 'within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order . . . . . , . . . . . . . or toappear and show cause why he should not furnish security.' If the court is further satisfied that merely directing the defendant to furnish security would not meet the ends of justice & that it was further necessary in the meanwhile to attach property, the court has to proceed under Sub-rule (3) of Rule 5, which requires that 'in the order', namely, the order directing to furnish security etc., the court may direct conditional attachment of the whole or any part of the property so specified. Two conditions are therefore, necessary before attachment before judgment immediately upon making an application can be made by a court. In the first place, the court has to issue an order directing security to be furnished for the sum specified and in the same order it may make an attachment of the property. The legislature appears to have deliberately directed that the order of attachment must be contained in the same order which requires furnishing of security, as the defendant against whom no decree had yet been passed, may have full opportunity to understand the situation and may know about both the orders of the court simultaneously so that there may not be any mistake about the service of one part of the order only. In the present case, as facts have been quoted above, the trial court in its order dated the 2nd of May, 1950 (Ext. 3) did not apply its mind to the provisions of Rule 5 at all and neither directed furnishing of security nor ordered a conditional attachment which phrase must mean that attachment was to be made only in case security was not tendered or furnished. This position of law is made further clear by form No. 5 in Appendix F added to the Schedule. That form itself, however, does not provide the language necessary for the attachment of immovable property obviously because it was contemplated that an order for attachment of the property directed under Sub-rule (3) of Rule 5 would be, under Order 38 Rule 7, according to the provisions of Order 21, Rule 54 and consequently the relevant form No. 24 Appendix E to the Schedule would also be utilised for that purpose. Here we may con-sider in passing the argument on behalf of the learned counsel for the appellants that the two forms cannot be combined together into one form as the Code prescribes separate forms and they have to be used either separately as they are, or in case the language of none of the forms is suitable they cannot be utilised. This contention of the learned counsel finds some support from the observation made in the case of Gaya Thakur v. Bhagwat Prasad : AIR1963Pat286 .

In that case, the only question raised was that in an attachment before judgment only form No. 5, Appendix F was used and no compliance was made with the provisions of Order 21, Rule 54 by using the language of form No. 24, Appendix E. It was held that it was not necessary to use the language of both the forms. The learned Judges seem to have been under the impression that the forms prescribed in the Code could not suitably be altered, according to the requirements. The attention of their Lordships does not seem to have been brought to the provisions of Order 48, Rule 3, which says :

'The forms given in the appendices, with such variation as the circumstances of each case may require, shall be used for the purposes therein mentioned'.

However, in the present case form No. 5 was not at all used and no order in that form was handed over for service.

8. What was handed over for service on the defendants was the notice (Ext. 4). We have, therefore, to see whether even this notice was according to law. Under Order 21 Rule 54, when an immoveable property has to be attached

'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 of charge'

and such an order is to 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 has to be affixed on a conspicuous part of the property and then upon a conspicuous part of the court-house. The notice in the present case merely prohibited the judgment-debtor from transferring the property and did not prohibit all other persons from taking any benefit from such transfer. This notice was returned unserved and no attempt was made to publish the notice by beat of drum or to affix it to a conspicuous part of the property or of the court-house. What was published by beat of drum was the warrant of attachment (Ext. B-9), which merely stated the description of the property which was to be attached and, as stated above, the report of the officer merely indicates that he published it by beat of drum and it does not indicate whether even this warrant was attached to the property and to the court house and we are asked to infer that it was so done because the report further says that attachment was made according to law. From this report we are unable to infer that although no order, as provided by Rule 54 of Order 21, was issued to the Amin, yet he not only proclaimed such an order but also affixed it to aconspicuous part of the property as well as the court-house. The position, therefore, is that neither the provisions of Order 38, Rule 5 were complied with nor were the requirements of Rule 54 of Order 21 fulfilled.

The order passed by the court (Ext. 3) itself does not purport to comply with any of those provisions and the court does not seem to have cared to know the law on the subject before passing the order. In these circumstances, we are unable to come to the conclusion that any attachment was effected. On behalf of the appellants it was, however, contended that even though the provisions of these rules were not strictly complied with, yet the court having passed an order of attachment and the Amin having declared on the spot that the property had been attached, the irregularity in the order and procedure can be condoned and the fact that the property had been attached cannot be overlooked. The contention is that the court having jurisdiction to attach property, did in fact attach it and the irregularities in the procedural part cannot nullify the effect of what the court did within its jurisdiction. We are unable to agree with this line of argument. In this matter the distinction between the jurisdiction of the court and mere irregularities in the procedural part in execution of that order is irrelevant. What we have to see is whether an attachment has taken effect. The court had certainly jurisdiction to attach the property but in order to achieve that object the court was bound to follow the procedure provided by law. The court, by following a different procedure unknown to law cannot possibly achieve that object which the law directs to be achieved in a particular way.

It is a well settled proposition of law that a thing for which provision has been made must be done in that way, or not at all. If the procedure prescribed is not followed, the object is not achieved although a court may have jurisdiction to do that. This is the necessary inference from what has been said by the Judicial Committee in the case quoted above. In that case also, the court had jurisdiction to attach property but their Lordships definitely said that this purpose of effecting the attachment could not be achieved unless a proper order was passed according to law and the whole procedure prescribed by law is gone through.

9. On behalf of both the sides, a large number of cases were cited before us and we shall now proceed to deal with such of those cases alone which have a direct bearing on the point.

10. Starting with the cases of our own Court, the first one is the case of Nathu Mal v. Kishori Lal, 23 Ind Cas 107: (AIR 1914 All 511(2)). This was a Division Bench case. In this case, the property had been sought to be attached before judgment, which order not being according to the provisions of Order 38, Rule 5 C. P. C. was appealed against. The suit itself was subsequently decreed and an appeal against that decree was also pending in the High Court. In these circumstances, it was practically admitted that the order of attachment before judgment had really become useless but still thelearned Judges went on to hold that the order of attachment of property without requiring the judgment-debtor to furnish security was 'irregular and objectionable' and they set aside the order. The interest of any third party was not involved and consequently it was not necessary further to decide the effect of such an order on a private transfer.

11. A similar matter again arose before a Division Bench of this Court in Emperor v. Tohfa, : AIR1933All759 . In that case the decree-holder having applied for attachment before judgment, the following order was passed: 'Let notice go to the defendant to show cause why the application be not allowed. Interim attachment meanwhile. Let B. Onkarnath Vakil do the work of attachment.' B. Onkarnath Vakil went to the place of the defendant and tried to make attachment when the judgment-debtor put obstruction and made it impossible to effect the attachment. The defendant was thereupon prosecuted under Section 186 of the I. P. C. for an illegal resistance and convicted in courts below. The accused contended in the first place that he had not used any physical force to cause resistance. This defence, however, failed even in the High Court. The other defence was that the order of attachment itself passed by the Munsif was illegal and resistance to such an illegal order was not an offence. The learned Judges accepted this contention and acquitted the accused. In this connection the Bench observed as follows:

'The wording of Order 38, Rule 5 and of form No. 5 in Appendix F show that the Legislature intended that the notice to the defendant to furnish security or to show cause against it and the order for the conditional attachment of his property should be issued simultaneously and on one and the same form. in the present case the only document on record in pursuance of the Munsif s order of 13th February, is a manuscript warrant to the Commissioner for the attachment of Tohfa's property. .... .In our opinionthis omission and doubt which exist as to whether in fact anything was done in pursuance of the order of 13th February except the issuing of a warrant of attachment to the Commissioner must be held to render the warrant illegal.'

On behalf of the Government Advocate it was also argued that the warrant of attachment may have been irregular but it was not illegal. This argument was also not accepted and the accused was acquitted. This case is a clear authority for the proposition that an order of attachment not complied with the provisions of Order 38, Rule 5 C. P. C. Is a wholly illegal order and no person has the authority of law to serve any such order.

12. A similar point again arose in Dular Singh v. Ram Chander : AIR1934All165 . This was a case in which attachment before judgment was sought of a decree passed in favour of the defendant. In that case an order of attachment before judgment had been passed but the required notice was not served on the defendant. In that case also the provisions of Order 38, Rule 5 C. P. C. were not complied with. After a consideration of the provisions of lawin detail it was held that no attachment was effected. Since attachment of a decree requires personal service of notice under Order 21, Rule 53 C. P. C., it was held that without such service no attachment could take place. But in the case of attachment of immoveable property under Order 21, Rule 54 C. P. C. personal service was not necessary: Karan Singh v. Ram Sahai, : AIR1941All41 . But with regard to non-compliance of the provisions of Order 38, Rule 5 C. P. C. It was observed:

'The Court under Rule 5 Sub-clause (3) has power to direct the conditional attachment of the property specified in the application but no such order of conditional attachment could be passed without an order under Clause (1) of the same rule .......... An attachment which didnot comply with the provisions of Rule 5, Order 88 was illegal and ultra vires and the plaintiff therefore cannot claim any benefit under it.' Subsequently another case arose reported in the same volume Prag Nath v. Mt. Indra Devi, : AIR1934All456 . In this case also the matter came up in appeal against the order itself. The trial court had passed the following order: 'Let notice go to the defendant to show cause, if any, against this application' and it was held that the order not having been complied with the provisions of Order 38, Rule 5 C. P. C. was an illegal order. The learned Judges set aside that order but directed that the attachment effected by the court below be treated as an attachment under Order 38, Rule 5 and the trial court should pass a proper order under the rule and issue notice as required by the same. In that case although it was not necessary to decide whether the attachment was a complete nullity or not, as there was no question of the interest of third parties coming in, it was observed:

'Such non-compliance with the provisions of the rule amounted to an irregularity and the order passed by the court below was both irregular and objectionable. It does not necessarily Follow that it was wholly ultra vires or void ab initio.' The remark that it was not necessarily ultra vires or void ab initio was a mere obiter dictum and is contrary even to the observations of the Judicial Committee mentioned above.

13. In the case of Shyam Lal v. Bahal Rai, : AIR1936All408 a similar question again arose upon an attachment before judgment where the provisions of Order 38, Rule 5 C. P. C. were not complied with. The trial court merely ordered attachment of property under Order 38, Rule 5 to the extent of Rs. 12,000 only but did not pass an order for furnishing security etc. This also being an appeal against an order of attachment before judgment no interest of the third party was involved. But the learned judges, who decided the case, dealing with the order of the court directing attachment before judgment without demanding security etc. observed as follows:

'This he could not do until he had called upon the defendant to furnish security, to produce and place at the disposal of the court the property or call upon the judgment-debtor toshow cause why he should not furnish security.'

The order of the court below was set aside and the case was remanded for hearing the application afresh. The important words quoted above in this connection are 'this he could not do'. To our mind, they indicate the opinion of the learned Judges that the trial court had no power to do that.

14. In Pokhpal Singh v. Kanhaiya Lal, : AIR1946All438 attachment of immoveable property was ordered in execution of a decree. The attachment is said to have been effected by proclamation and affixation of the attachment order on 2-2-1932. Before the suit (culminating in the ruling) the judgment-debtor had already sold the property by private negotiations. Later, the property was put to auction and purchased by one Banarsi Das. Later on, Banarasi Das stated that he had made the bid or) behalf of Kanhaiya Lal plaintiff and a certificate was issued in the name of the plaintiff. The plaintiff thereupon applied to the executing court, for possession. This was dismissed by the Mun-sif and ultimately the present suit was filed for possession of the property. It was contested, among other grounds, on the ground that the sale dated the 11th of January, 1932 was a valid sale. In this connection, it was held by Yorke, J. as follows:

'It is thus clear that its virtue of Sub-rules(1) and (2) of Rule 54 of Order 21 an attachment cannot be said to have been made unless and until the provisions of both Sub-rules have been complied with. It appears to be obvious that this proposition may be stated in another way, namely, that the order of attachment under Sub-rule (1) cannot take effect as against anybody unless and until the provisions of Sub-rule(2) have been complied with.'

A similar view was taken by Braund, J. and both the learned Judges were of the opinion that Sub-rule (3) added to Rule 54 by this Court was inconsistent not only with the other provisions of Rule 54 but also with Section 64 C. P. C. That would dispose of another argument of the learned counsel for the appellants that under Sub-rule (3) of Rule 54 of Order 21, the attachment would be binding on the plaintiff-respondents from the date of the order. Apart from the fact that the order itself, if not carried out according to the rules, would be a nullity, as observed by the Privy Council, it cannot be binding on the transferees by virtue of Sub-rule(3) added by this Court because that rule has been held to be inconsistent with Section 64 C. P. C. and no rule inconsistent with the section can be valid.

15. We shall now proceed to consider the cases of other High Courts cited before us in Bharat Chandra v. Gouranga Chandra, : AIR1927Cal885 while ordering attachment before judgment although compliance was made with Order 38, Rule 5 but the prohibitory order required by Sub-rule (1) of Rule 54 of Order 21 was not issued and it was held that there was no valid attachment.

16. Badri Pd. v. Babu Lal, AIR 1950 Cal 868 was a case in which the very order ofattachment was challenged. No interest of third parties was involved. The order was set aside as wrong but it was observed that it was not necessarily illegal. This observation again as in the Allahabad case was an obiter remark. In Monoharlal Banerjee v. Bengal Immunity Co. Ltd. : AIR1945Cal308 an attachment before judgment was held to be invalid as the order did not comply with the provisions of Order 21, Rule 54 C. P. C.

17. Rameshwardayal Ramswaroop v. Bheemsen Dulichand, AIR 1951 Madh Bha 82(2) was also a case of attachment before judgment in which the order passed by the trial court was,

'Attachment order may be issued. If the defendant furnishes security to the extent of the decree and the costs then attachment may not be made. Any objections against the attachment may be made by 4-10-1950'.

The learned Judge, who decided the case, observed as follows:

'From the perusal of the record, I find thatthese are not the only irregularities in the proceedings of the lower court. The entire proceedings under Order 38, Rule 5 are ultra vires.The order of the lower court reproduced aboveindicates that the learned Judge passed an orderof attachment and fixed the date for filing anyobjection with regard to the attachment. Thisorder of attachment appears to be unconditionalas there is nothing to show in the order thatit is conditional. An unconditional order cannot be passed unless the defendant is directedwithin a time to be fixed either to furnish security to show cause why he should not furnishsecurity and within the prescribed period hefails either to show cause or to furnish security..... If the order passed by the learnedJudges be considered to be a conditional orderof attachment it must be accompanied by anorder directing the defendant either to furnishsecurity or to show cause why he should notfurnish security within a prescribed period. If a conditional order is not accompanied by such adirection to the defendant such an order isultra vires.'

18. In the Lahore High Court also several cases arose in which the point was considered. In Madan Theatres Ltd. v. Hari Das, AIR 1936 Lah 33 in which attachment before judgment was sought, the trial court passed an order 'directing attachment before judgment under Order 38 Rule 5(3)' without complying with the other provisions of the rule. An appeal was filed against the order but on a preliminary objection, it was treated as a revision. The court having come to the conclusion that the order was wholly without jurisdiction interfered with it and set aside the order. It was held:

'Before passing the order of attachment before judgment, the Court must faithfully and strictly carry out the stringent procedure as laid down in Order 38, Rule 5 and no short cuts are permissible.'

19. Again in Derajat Bank Ltd. v. Mt. Sar-dar Bibi, AIR 1937 Lah 671 a suit was filed on the basis of a mortgage which was alleged to have been executed after attachment had been effected under which the defendant had purchased the property and the plaintiff was said to have no right to get the property sold as mortgage property. In that case although a prohibitory order under Order 21, Rule 54 was issued but the other formalities of proclamation and affixation of the prohibitory order on the property and in the court-house etc. were not carried out. Reliance was placed upon the dictum of the Judicial Committee mentioned above and it was held that without compliance with these formalities, there could be no attachment. Reliance was also placed on the Mula Ram v. Jiwinda Ram, ILR 4 Lah 211: (AIR 1923 Lah 423) an earlier case of that Court and it was held that there was no attachment and the plaintiff had a right to get the property sold.

20. In Firm Dwarka Das Badri Das v. Siri Ram, AIR 1938 Lah 49 attachment before judgment was held to be irregular when the provisions of Order 38. Rule 5 were not complied with but it was held that the attachment was not a nullity and if no objection was filed by the judgment-debtor and the order was not set aside, a third party could not ignore it and was bound by it. The learned Judges, who decided the case relying upon obiter observation in : AIR1934All456 , held that the order was not a nullity. The observations of the Judicial Committee were not considered and the rulings of the other High Courts directly on the point were also not cited before the learned Judges.

21. In Dhian Singh Sobha Singh v. Secretary of State, AIR 1945 Nag 97 an order of attachment before judgment, although not in compliance with the provisions of Rule 5 of Order 38, was still held to be a good attachment on the ground that the jurisdiction of the court to attach is governed by Section 94 C. P. C. and the provisions of Order 38 and Order 21 merely lay down the procedure which had to be followed if there was any mistake or irregularity in following that procedure, the attachment order itself could not be nullified. But the learned Judges completely overlooked the fact that the question of nullifying the order of attachment was not relevant. What was to be seen was whether the attachment was effected according to law. Even though the court passes a perfect order of attachment but in execution of that order, proper steps required by law are not taken. No attachment can come into existence and the whole discussion in the case relating to the distinction between the jurisdiction of the court and the irregularities in procedure is, to our mind, besides the point. What is to be seen, as laid down by the Judicial Committee, in order to find out whether an attachment has taken place or not, is, whether a proper order is passed and also whether the procedure laid down for effecting the attachment in pursuance of the order has been followed.

22. In Sadhu Prasad v. Satnarain Sah, AIR 1939 Pat 81 a Division Bench of that Court held that no attachment before judgment had come into existence where in the warrant of attachment the details of the property attached were not mentioned and the prohibition contained in Order 21 Rule 54(1) and in form No, 24 Appendix E of the C. P. C. were neither proclaim-ed nor attached to the property. It was also held that in a case where me judgment-debtor has sold his property to another person, the burden is upon the person who claims that an attachment had taken place and therefore the transfer was ineffective, to show that a valid attachment had taken place.

23. On a consideration of the whole matter we think that both on principle and authority the correct view is that no attachment comesinto existence where the prescribed procedurehas not been followed as in the present case.But cases where the procedure prescribed hasbeen substantially followed while there are minorirregularities not affecting the real object, itmay be held that the attachment is valid despite some minor irregularities.

24. In the result, therefore, we find thatthe court below was right in holding that therewas no valid attachment in existence and theplaintiffs were entitled to a decree for sale ofthe property against the defendants. The appealis accordingly dismissed with costs.


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