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Mookan Ouseph Thomakutty Vs. Puramundekat Padinjare Madathil Nanu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 931 of 1958
Judge
Reported inAIR1963Ker193
ActsCode of Civil Procedure (CPC) , 1908 - Sections 136 - Order 38, Rules 6 and 7
AppellantMookan Ouseph Thomakutty
RespondentPuramundekat Padinjare Madathil Nanu
Appellant Advocate T.S. Venkiteswara Iyer, Adv.
Respondent Advocate R. Krishnaswamy Iyer, Adv.
DispositionAppeal allowed
Cases ReferredPrivy Council Pisani v. Attorney General
Excerpt:
- .....prior to judgment is valid and subsisting. 2. in a suit pending before the court of the munsif of cochin an attachment before judgment was sought. the properties sought to be attached lay within the jurisdiction of the court of the munsif of ponani and therefore the warrant of attachment was sent to that court through the district court at ernakulam. the warrant was not sent through the district court of kozhikode as contemplated by section 136 of the code of civil procedure. the attachment was effected without any objection and it was also confirmed by the cochin court without any objection. the suit was finally decreed and when proceedings in execution in pursuance of the attachment were started, objection was taken that the attachment was invalid, because the warrant of attachment.....
Judgment:

T.C. Raghavan, J.

1. The short question in this case is whether an attachment effected prior to judgment is valid and subsisting.

2. In a suit pending before the Court of the Munsif of Cochin an attachment before judgment was sought. The properties sought to be attached lay within the jurisdiction of the Court of the Munsif of Ponani and therefore the warrant of attachment was sent to that court through the District Court at Ernakulam. The warrant was not sent through the District Court of Kozhikode as contemplated by Section 136 of the Code of Civil Procedure. The attachment was effected without any objection and it was also confirmed by the Cochin court without any objection. The suit was finally decreed and when proceedings in execution in pursuance of the attachment were started, objection was taken that the attachment was invalid, because the warrant of attachment was not sent by the Cochin court through the District Court of Kozhikode. This objection was overruled by the primary court, but was upheld by the learned Subordinate Judge. The correctness of that order is being canvassed in the Second Appeal.

3. Section 136 of the Code of Civil Procedureprescribes only a procedure and does not confer jurisdiction on the Court, which effects the attachment. The non-compliance of that procedure being only a procedural defect, it may be waived if no objection is taken and it does not invalidate the attachment itself. This position appears to be almost clear under Section 136. Besides, Mr. T. S. Venkiteswara Iyer invites my attention to a Full Bench decision of the Travancore-Cochin High Court in Mariamma Mathew v. Ittop Poulo, 1952 Ker LT 116 : (MR 1952 Trav-Co 159) (FB), wherein several decisions of various High Courts on the question have been considered and a similar view taken. I am in entire agreement with that decision and I do not think there is any need for reviewing the decisions considered in that case. I would only refer to one ruling of the Privy Council Pisani v. Attorney General for Gibraltar, (1874) L.R. 5 P.C. 516. The relevant observation in that judgment is :

'That, where there is jurisdiction over the subject-matter, but non-compliance with the procedure prescribed as essential for the exercise of the jurisdiction the defect might be waived'.

In the case before me the Ponani court had jurisdiction over the subject-matter of attachment and the only defect was in the procedure adopted by the Cochin court in sending the warrant of attachment direct to the Ponani court instead of through the District Court of Kozhikode. In such a case the attachment could not be held to be invalid or void, because there was no objection to the attachment either at Ponani, when it was effected, or at Cochin, when the same was confirmed.

4. Thus the learned Subordinate Judge wasclearly in error in reversing the order of the learned Munsif; and therefore her order is set asideand the order of the learned Munsif is restored. Inthe circumstances of the case, I pass no order regarding costs.


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