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Satya NaraIn Sri Kishan Kumar Vs. Arora and Co. and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 200 of 1970
Judge
Reported inAIR1979All240
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 54, 54(1), 54(2) and 90
AppellantSatya NaraIn Sri Kishan Kumar
RespondentArora and Co. and anr.
Appellant AdvocateDevandra Swarup, Adv.
Respondent AdvocateDaya Shanker, Adv.
DispositionAppeal dismissed
Excerpt:
.....of non affixation. - - 8. this contention is well founded for the obvious reason that sub-rule (2) of rule 54 is in, a positive form. it is well known that the sale is conducted by a civil court amin or an officer appointed by the executing court. persons who can take the property from the judgment-debtor can be of the village/locality of the judgment-debtor as well as those who are not of the village or locality of the judgment debtor. (4) rule 90 of order xxi clearly lays down that no sale shall be set aside simply on the ground of irregularity or fraud unless the court was satisfied that the judgment-debtor has sustained substantial loss by reason of such irregularity or fraud. therefore, in the instant case the appellant failed to prove any substantial injury to him by..........house because the report of the amin was on record and it did not at all indicate that the amin affixed a copy of the order on the court house.8. this contention is well founded for the obvious reason that sub-rule (2) of rule 54 is in, a positive form. it requires three things to be done. therefore, it is the duty of the attaching officer to make compliance of all the three things required by sub-rule (2) of rule 54. in the present case the report of the amin is on record and it simply shows compliance of the first two ingredients of the sub-rule. in these circumstances it is correct to say that the courts could not presume that a copy of the order was affixed on the conspicuous part of the court house.9. but this is not enough for setting aside the orders of the courts below and for.....
Judgment:

P.N. Goel, J.

1. This is a judgment-debtor's appeal against the order dated 8-11-1969 passed by the Additional District Judge, Kanpur, in execution of Civil Appeal No. 410 of 1967.

2. The appellant's l/5th share in a house was put to sale on 25-10-1966. It was sold for a sum of Rs. 800/-. Thereafter the appellant filed an objection under Order XXI, Rule 90, C. P. C.

3. The appellant took three objections--

(1) the share of the appellant in the house was not duly attached according to the provisions of Order XXI, Rule 54 (2), C. P. C.

(2) the appellant was not served with a notice under Order XXI, Rule 66, C. P. C., and

(3) the value of his share was Rupees 3000/-.

4. The executing court did not find substance in any of the objections. Before the lower appellate court only one point was pressed that the property sold was not attached according to law.

5. Order XXI, Rule 54 (1), C. P. C. lays down that 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. Under Sub-rule (2) of this Rule, the order passed under sub-rule (1) has to be implemented. The mode of implementation is (a) it will be proclaimed at some place on or adjacent to the property in question by beat of drum or other customary mode and (b) a copy of the order shall be affixed on a conspicuous part of the property. After these two things have been done, the officer making the attachment shall affix a copy of the order on a conspicuous part of the court house. In the present case the report of the Amin did not indicate that a copy of the order was affixed on a conspicuous part of the court house.

6. The executing court did not believe the negative statement of the judgment-debtor on this point. The executing court held that it must be presumed that a copy of the order was affixed on a conspicuous part of the court house. The lower appellate court took the same view.

7. Sri Devendra Swarup, learned counsel for the appellant contended that the courts below were not justified in presuming that a copy of the order must have been affixed on a conspicuous part of the court house because the report of the Amin was on record and it did not at all indicate that the Amin affixed a copy of the order on the court house.

8. This contention is well founded for the obvious reason that Sub-rule (2) of Rule 54 is in, a positive form. It requires three things to be done. Therefore, it is the duty of the attaching officer to make compliance of all the three things required by Sub-rule (2) of Rule 54. In the present case the report of the Amin is on record and it simply shows compliance of the first two ingredients of the Sub-rule. In these circumstances it is correct to say that the courts could not presume that a copy of the order was affixed on the conspicuous part of the court house.

9. But this is not enough for setting aside the orders of the courts below and for allowing the objection of the judgment-debtor under Order XXI, Rule 90, C.P.C. Reasons for this view are as follows:--

(1) Under Rule 90, C. P. C. a judgment-debtor can seek setting aside of the sale on the ground of material irregularity or fraud in publishing or conducting the same. It is well known that the sale is conducted by a civil court Amin or an officer appointed by the executing court. After the immoveable property had been attached, a notice is issued to the judgment-debtor to settle the terms of the proposed sale vide Rule 66 of Order XXI. After the court has settled the terms a proclamation is drawn up. That proclamation has to be published in the manner laid down in Rule 67. Thereafter the Amin or the officer appointed by the court holds the sale on the date fixed. Thus in view of the clear provisions of Rules 66, 67 etc., it is abundantly clear that under Rule 90, the judgment-debtor can take objections against the publishing of the sale proclamation and conducting of the sale by an officer of the court. Under this rule the judgment-debtor cannot take back the executing court to the proceedings of attachment. In case a judgment-debtor is minded to object to the validity of attachment, he can do so as soon as he is served with the notice of the proceedings under Order XXI, Rule 66, C. P. C, In this aspect of the matter the present objection cannot be taken by the judgment-debtor in an objection filed under Order XXI, Rule 90, C. P. C.

The contention of the appellant's counsel that even under Rule 90, the appellant could file an objection against the validity of the attachment is not warranted by the language of Rule 90 itself.

(2) The Code of Civil Procedure has made no rule indicating the consequences of non-affixation of the prohibitory order passed under Rule 54 (1) at the court house as provided in Sub-rule (2) of Rule 54. Therefore, the provisions of Sub-rule (2) in this respect are not mandatory. They are simply directory. Its result is that the breach of this part of the rule does not vitiate the sale.

(3) Order of attachment is prohibitory in nature. It prohibits the judgment-debtor from transferring or charging the property in any way. It also prohibits persons from taking any benefit from a transfer as charge made by the judgment-debtor. Persons who can take the property from the judgment-debtor can be of the village/locality of the judgment-debtor as well as those who are not of the village or locality of the judgment debtor. All persons must come to know of the prohibitory order. For this reason provisions have been made in Sub-rule (2). If the copy of the order is affixed at the house of the judgment-debtor, he comes to know of the order. If the order is proclaimed by beat of drum in the village and a copy of the order is affixed on the property in question, the people of the village of the judgment-debtor would come to know of the prohibitory order. If a copy of the order is affixed on a conspicuous part of the court house, the people other than those of the village of the judgment-debtor can come to know of it. It is thus evident that the affixation of a copy of the order on the, court house is for the benefit of the persons other than the judgment-debtor. The judgment-debtor cannot therefore take advantage of its non-affixation at the court house. In this connection it shall be borne in mind that Section 64 of the C. P. C. laid down that any transfer made subsequent to the attachment shall be void.

In view of the above, it is clear that the intention of affixing a copy of the prohibitory order at the court house is for the benefit of the persons to whom the judgment-debtor may transfer the property surreptitiously. The judgment-debtor, as stated above, cannot take advantage of the omission in question.

(4) Rule 90 of Order XXI clearly lays down that no sale shall be set aside simply on the ground of irregularity or fraud unless the court was satisfied that the judgment-debtor has sustained substantial loss by reason of such irregularity or fraud. In the present case there is a clear finding of the executing court on this point against the appellant. The appellant did not press this point before the lower appellate court. Therefore, in the instant case the appellant failed to prove any substantial injury to him by reason of the alleged irregularity.

10. The result of what has been discussed above is that there is absolutely no merit in this appeal which is dismissed with costs


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