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Ouseph Sakaria and ors. Vs. Cherian Joseph and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberA.S. Nos. 91, 99 and 115 of 1965
Judge
Reported inAIR1971Ker159
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 42 and 63 - Order 38, Rule 5
AppellantOuseph Sakaria and ors.
RespondentCherian Joseph and anr.
Appellant Advocate P.K. Krishnakutty Menon,;P.C. Chacko;Cherian Joseph and ; S. Boothalinga Iyer, Advs.
Respondent Advocate George Yadakkel and; K. Raman, Advs.
DispositionAppeal dismissed
Cases ReferredGopaldas Hiralal Marwadi v. Mahadu Dagdu Patil
Excerpt:
.....under order xxi rule 42 as well, it cannot be said that the attachment cannot fall under order xxxviii rule 5. 8. we do not think that this position calls for any authority to substantiate it, since as already observed by us, the language of rule 5 of order xxxviii is itself clear. in other words, in a suit on a mortgage where a preliminary decree and a final decree are passed withfreedom for the decree-holder-mortgagee to ask for a personal decree, the mortgagee can effect an attachment under order xxxviii rule 5 if the necessary requirements contemplated by that provision are satisfied before the personal decree is passed. we also add that, in view of this conclusion of ours, the objection that section 47 of the code is a bar cannot also hold good. thereafter, we fail to see any..........which results in a decree which is capable of execution. in the cases before us, the preliminary decree passed in the earlier suit by the high court was not such an executable decree; and the final decree that had to be passed later was the only executable decree. therefore, if, before such an executable decree was passed, an attachment was sought, the attachment would come within order xxxviii rule 5 of the code of civil procedure. this is evident from the language of rule 5 of order xxxvtii itself. the second appellate judge has gone further and has also held, overruling the contention of the first respondent, that the attachment falls under order xxi rule 42 as well. we are in agreement with this view too. for the reason that the attachment falls under order xxi rule 42 as well, it.....
Judgment:

Raghavan, J.

1. The appellant in each of these three appeals against second appeals is a brother of the other appellants in the other appeals. The appeals arise out of three suits, in which the common plaintiff is the first respondent and the common first defendant now deceased, was the father of the appellants, each of whom being the second defendant in the respective suit. The suits were for setting aside claim orders and also for declaring three gift deeds, each in favour of each of the appellants, by their father as sham and nominal and were intended to defraud the creditors of the father. The trial court and the lower appellate court decreed the suits; and a learned Judge of this Court (Raman Nayar J. as he then was) confirmed the decree insecond appeal. However, the learned Judge granted leave to appeal to a Division Bench and hence these appeals, each by the second defendant in each suit

2. The second appellate decision is reported as Sakaria v. Joseph, 1965 Ker LT 341 = (AIR 1965 Ker 288).

3. We do not think it is necessary to state the facts in any detail. However, we shall just state the essential facts to bring out the questions to be decided by us.

4. In O. S. No. 103 of 1117 of the District Court of Alleppey, the High Court in appeal passed a preliminary decree directing the first defendant to account to the first respondent for the latter's share of the profits from some immovable properties. The High Court also directed the lower Court to pass a final decree after assessing the profits. The suit went back to the lower court; and pending the final decree proceedings, the first defendant executed the three impugned gift deeds and another gift deed in favour of his four sons, three of whom are the appellants, regarding the major portion of his properties. Immediately on Knowing about these gift deeds, the first respondent filed an application under Order XXXVIII Rule 5 of the Code of Civil procedure for attaching the properties covered by the gift deeds. And an order of interim attachment was also passed by the court under Order XXXVIII Rule 5 (3).

The appellants then filed claim petitions; and the claim petitions, the petition for attachment and the final decree proceeding were all disposed of by the court on the same day. The court held that the attachment under Order XXXVIII Rule 5 was not proper (according to the court, the attachment should have been under Order XXI Rule 42) and that the gifts were sham transactions intended to defraud the creditors of the first defendant. In the view the court took that the attachment was bad, the court allowed the claim petitions and raised the attachment. The first respondent then filed the three suits, which have given rise to these appeals, as representative suits representing all the creditors of the first defendant; and the appellants objected that the suits were not maintainable. This objection has been overruled by all the lower courts; and the question we have to consider is whether the said concurrent decision of the lower courts is liable to be disturbed.

3. The provision of law under which the suits were brought is not mentioned in the plaints. But, it is sought to be justified either under Order XXI Rule 63 of the Code of Civil Procedure or under Section 53 of the Transfer of Property Act or under Section 42 of the Specific Relief Act. If the first respondent succeeds in establishing that any of the aforesaid three provisions applied, the decision of the lower courts has to be upheld. In two of the cases, an additional objection is also takenby the appellants, viz., that Section 47 of the Code of Civil Procedure is a bar to the suits.

6. We shall first take up the question whether the suits fall squarely under Order XXI Rule 63 of the Code of Civil Procedure. The objection of the appellants to this is that the attachment effected by the first respondent pending the final decree proceeding (after the passing of the preliminary decree) should have been under Order XXI Rule 42 and should not have been under Order XXXVIII Rule 5; and that, since the attachment was effected under the latter provision, it was no attachment at all, with the result that Order XXI Rule 63 cannot be pressed into service to sustain the suits. This objection has been considered by the learned second appellate Judge; and the learned Judge has come to the conclusion that the attachment falls both under Order XXXVIII Rule 5 and under Order XXI Rule 42 of the Code.

7. Mr. P. K. Krishnankutty Menon, the counsel of the appellant in A. S. No. 91 of 1965, contends that the conclusion of the learned second appellate Judge that the attachment falls under Order XXXVIII Rule 5 also is erroneous. The argument of the counsel is that the provision contaiued in Order XXXVIII Rule 5 is a general provision for attachment before judgment and the provision contained in Order XXI Rule 42 is a special provision for cases in which preliminary decrees are passed and attachment is sought pending final decree proceedings. The counsel proceeds that if the special provision contained in Order XXI Rule 42 applies, then the general provision contained in Order XXXVIII Rule 5 must be excluded. We are not concerned with the question whether the one is a special provision and the other is a general provision. The relevant question is whether the attachment in question comes under Order XXXVIII Rule 5. The provision is for attachment before judgment; and the judgment contemplated, must obviously be a judgment which results in a decree which is capable of execution. In the cases before us, the preliminary decree passed in the earlier suit by the High Court was not such an executable decree; and the final decree that had to be passed later was the only executable decree. Therefore, if, before such an executable decree was passed, an attachment was sought, the attachment would come within Order XXXVIII Rule 5 of the Code of Civil Procedure. This is evident from the language of Rule 5 of Order XXXVTII itself. The second appellate Judge has gone further and has also held, overruling the contention of the first respondent, that the attachment falls under Order XXI Rule 42 as well. We are in agreement with this view too. For the reason that the attachment falls under Order XXI Rule 42 as well, it cannot be said that the attachment cannot fall under Order XXXVIII Rule 5.

8. We do not think that this position calls for any authority to substantiate it, since as already observed by us, the language of Rule 5 of Order XXXVIII is itself clear. However we may refer to the three decisions considered by the second appellate Judge in paragraph 13 of his judgment. The first decision is Jogemaya Dassi v. Baidyanath Paramanick, AIR 1919 Cal 258 (2) by Greaves J. of the Calcutta High Court, wherein the learned Judge has held that, after the preliminary decree in a suit on a mortgage and before the appointed day for payment into court of the amount due on the mortgage, the plaintiff is entitled to get other properties of the mortgagor attached under Order XXXVIII Rule 5, if he can satisfy the court that the sum realised by the sale of the mortgaged properties will not be sufficient to satisfy the mortgage decree and that the mortgagor is trying to dispose of his other properties with intent to obstruct or delay the execution of any personal decree that may be passed against in under Order XXXIV Rule 6 of the Code of Civil Procedure.

The next decision is Shyam Lal v. Bahal Raj, AIR 1936 All 408 by a Division Bench of the Allahabad High Court. Harries J., speaking for the Division Bench, has followed the Calcutta decision by Greaves J. This decision was also in a suit on a mortgage; and the Division Bench has held that if the mortgagee-decree-holder is entitled to a personal decree and he satisfies the court that there would be sum due and owing to him after the sale of the mortgaged properties and that the judgment-debtor is trying to dispose of the whole or part of his other properties or to remove the same Out of the jurisdiction of the court in order to obstruct or delay the execution of the personal decree that might be passed, he can, before proceeding with the sale of the mortgaged properties or part thereof apply for attachment under Order XXXVIII Rule 5 of the Code of Civil Procedure.

The next decision is of the Bombay High Court by a Division Bench in Gopaldas Hiralal Marwadi v. Mahadu Dagdu Patil, AIR 1943 Bom 24. This decision again was in a suit on a mortgage. But, the argument advanced in this case went further and claimed that even after a final decree was passed in a mortgage suit, it liberty was reserved for applying for a personal decree under Order XXXIV Rule 6, it would be open to the plaintiff to make an application for attachment tinder Order XXXVIII Rule 5, after the final decree and before the court passed the personal decree if the plaintiff could convince the court that the judgment-debtor was trying to obstruct the execution of such personal decree when obtained. The Bombay High Court has agreed with this. Though it was not necessary to go so far in this decision, the argument went thus far. In other words, in a suit on a mortgage where a preliminary decree and a final decree are passed withfreedom for the decree-holder-mortgagee to ask for a personal decree, the mortgagee can effect an attachment under Order XXXVIII Rule 5 if the necessary requirements contemplated by that provision are satisfied before the personal decree is passed. On principle, we do not find anything wrong in this proposition, for, in relation to the personal decree, the attachment is an attachment before judgment, and the question whether a preliminary decree alone was passed or a preliminary decree and a final decree were both passed is immaterial. We, therefore, agree that the attachment in these cases comes under Order XXXVIII Rule 5 of the Code of Civil Procedure.

9. If the attachment thus comes under Order XXXVIII Rule 5, then Rule 8 of the same Order makes it clear that a claim preferred in such a case shall be investigated in the manner provided for the investigation of claims to properties attached in execution of a decree for payment of money. And this would attract Order XXI Rule 63, with the result that the three suits which have given rise to these appeals fall under Order XXI, Rule 63 of the Code. In view of this finding, we need not embark on a consideration of the other questions whether the suits will fall under Section 53 of the Transfer of Property Act or under Section 42 of the Specific Relief Act. As pointed out by us at the commencement of this judgment, if the suits fall within any of these three provisions, the suits are maintainable. We also add that, in view of this conclusion of ours, the objection that Section 47 of the Code is a bar cannot also hold good.

10. Mr. Krishnankutty Menon has then attempted to argue that some of the properties attached were outside the jurisdiction of the Alleppey Court which effected the attachment, and for that reason, the attachment of those properties should at least be held to be invalid and ineffective with the result that the suits in so far as those properties are concerned are not maintainable. This contention does not appear to have been raised till now until the counsel has attempted it at the bar. We do not think we will be justified if we embark upon an investigation of this question at this stage. Therefore, this contention is disallowed.

11. The counsel of the appellant in A. S. No. 99 of 1965 has argued that this case stood on a different footing in that the trial Court in this case held that the suit was not maintainable and that it was only the second appellate Court that held that the suit was maintainable. We do not think that this contention is Quite correct. What appears to have been held by trial Court in O. S. No. 64 of 1959 out of which this appeal has arisen is that the suit was hit by Section 47 of the Code. Still, the trial court held that the particular gift deed (Ex. P5) was a shamtransaction and that the properties covered by the said document were still liable to be attached. And this decree was confirmed by the lower appellate Court. In second appeal, Raman Nayar J. has held that all the three suits are maintainable under Order XXI Rule 63 and that Section 47 does not apply, with which we have agreed. Thereafter, we fail to see any difference in this case.

12. The appeals are dismissed with costs of the first respondent-plaintiff,

13. The rights, if any, of the appellants under Act 11 of 1970 will not be prejudiced by this decision.


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