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Madhavan Pillai Somanatha Pillai and anr. Vs. State of Kerala and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtKerala High Court
Decided On
Case NumberCriminal Appeal Nos. 173 and 252 of 1961
Judge
Reported inAIR1966Ker212; 1966CriLJ728
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 - Order 38, Rule 5 and 5(1)
AppellantMadhavan Pillai Somanatha Pillai and anr.
RespondentState of Kerala and ors.
Appellant Advocate T.K. Narayana Pillai, Adv. (for No. 1),; V.R. Krishna Iyer,;
Respondent Advocate T.K. Narayana Pillai and; N. Govindan Nair, Advs. (For Nos. 1 to 3),;
Cases ReferredChandra Deo v. Prokash Chandra.
Excerpt:
.....is so clearly illegal that it is to be readily set aside. hence the use of expressions such as 'void',nullity',null and void',without jurisdiction',and 'ultra vires' in cases where the impugned order is under direct attack as in appeal or revision provides no safe guide for holding that the order is void in the strict sense of the word so that it is for all practical purposes non est and may be ignored in collateral proceedings. it was clearly shown there that jurisdiction is entirely independent of the manner of its exercise. the jurisdiction of the court to attach property before judgment is indicated by the words 'if so prescribed in section 94, and that condition is satisfied when rules are made to order attachment of any property of the defendant. ). in the latter case if the..........has been duly proved and that has been marked as ext. p-1 (b). a warrant of attachment under order xxxviii rule 5 should be in form no. 5 of appendix f of the code. but the form actually used foi ext p-1 (b) was the malayalam form prescribed under the old travancore civil procedure code corresponding to form no, 8 of appendix e of the code which is the form for a warrant under order xxi rule 30 for the attachment of movable property in execution of a decree for money. this form has been most clumsily adapted for the purposes of order xxxviii rule 5.it is headed fin malavalam i which literally means 'order of immediate attachment', but is the expression in use for a conditional at-tachment usually referred to us an interim attachment under order xxxviii rule 5(3). the number and other.....
Judgment:

Raman Nayar, J.

1. The question were called upon to answer and the hare facts necessary for the purpose appear from the order of the reference made by the Division Bench.

'The appellants in Criminal Appeal 173 of 1964 have been convicted of the offence of robbery of a bus K L. K 2036 after ii had been attached and was in the custody of the Amin, Pw. 1, under an attachment warrant issued by the Subordinate Judge's Court. Kot-tayam. The main question for decision in this ca.se would he whether non-compliance of the provisions in Order 38 Rule 5 has the effect of making the order ultra vires and void and the con.se-quent attachment a nullity and whether in passing such an order there is total lark of jurisdiction. As the decisions are not uniform and as the question involved is of considerable importance, we refer the above said question for decision to a Full Bench.'

Presumably the Division Bench is of the view that if the order of attachment was void there could be no actual possession, whether lawful or unlawful, with the Amin or no dishonest intention on the part of the accused so that the alleged removal of the bus could not amount to theft.

2. In a suit for money (O. S. 107 of 1963 of the Sub Court. Kollayam) which be bad brought against the 2nd accused in this case the plaintiff applied under Order XXXVIII K 5 of the C. P. C. for the attachment before judgment of a bus belonging to the 2nd accused. Attachment was ordered, but neither the application made for the purpose nor the order thereon is in evidence although one should have thought that those would be among the first things the prosecution would prove. However, the actual order of warrant of attachment signed by the Judge himself has been duly proved and that has been marked as Ext. P-1 (b). A warrant of attachment under Order XXXVIII Rule 5 should be in Form No. 5 of Appendix F of the Code. But the form actually used foi Ext P-1 (b) was the Malayalam form prescribed under the old Travancore Civil Procedure Code corresponding to Form No, 8 of Appendix E of the Code which is the form for a warrant under Order XXI Rule 30 for the attachment of movable property in execution of a decree for money. This form has been most clumsily adapted for the purposes of Order XXXVIII Rule 5.

It is headed fin Malavalam I which literally means 'Order of immediate attachment', but is the expression in use for a conditional at-tachment usually referred to us an interim attachment under Order XXXVIII Rule 5(3). The number and other particulars of the suit in which the warrant is issued arc furnished. Hut the provision of law given in the printed form, namely, O. XXII Rule 8 of the Travancore C.P.C. to XXI 15 30 of the C.P.C.) has not been scored off. Then the warrant goes on to authorise the Amin In attach the properly specified in the accompanying schedule--Ex. P-2 (a) is the schedule -- namely the bus belonging to the defendant, for the decree that may be passed in the suit in the plaintiff's favour, and, unless the amount claimed in the suit and the costs (both of which are specified) are paid to him to hold the properly until further orders from the court.

3. There is evidence to prove that there was a suit for money K). S. No. 107 of 1963 of the Sub Court. Koltayam) againsl the 2nd accused, that the plaintiff I herein applied for the attachment before judgment of the 2nd accused's bus and that it was on that applica-tion that the order. Ext. P-1 (b), was made. As we have seen Ext. P-1 (b) is beaded 'Order of conditional attachment' and it says that the attachment is in respect of the decree that may be passed in favour of the plaintiff. It is, therefore, clear that the order of conditional attachment under Order XXXVIII Rule 5(3) of the Code. It is equally clear that it was made in utter disregard of Hie law. It does not say that the court is satisfied that the grounds necessary fur making an order under Order XXXVIII Rule 5 exist But that perhaps, is not an essential requirement since the rule does mil say that the satisficalion should be recorded in writing.

There is, however, the obligatory requirement of Sub-rule (j) of the rule that the court should make an order directing the defendant either to furnish security or to appear and show cause why he should not furnish security-- the 'may' of the sub-rule only means that it is within the discretion of the court to take action under the rule or not to take action; but if it decides to lake action then it must make the direction contemplated- there is no discretion in that matter. It does not appear that any such direction was issued, and in any case, the direction for conditional attachment under Sub-rule (3) was not made, as that sub-rule requires it should be made, in an order under Sub-rule (1) directing the defendant to furnish security or appear and show cause against furnishing security. And the condition that the property should be held under attachment until further orders from the court unless the suit claim is paid is altogether unauthorised.

4. There can be no doubt that Ext. P-1 (b) was an utterly wrong order, an erroneous or illegal order (in the sense that it was not in accordance with law). But that would not suffice to make it a void order, in the strict sense of that word, if the court had inherent jurisdiction, in other words, if it had jurisdiction over the parlies and the subject-mailer.

5. 'When the record itself discloses the fact that the court had no jurisdiction of the controversy, or that jurisdiction of the person of the defendant did not attach in the particular case, the judgment is a mere nullity and may be collaterally impeached, by any person interested, whenever and wherever it is brought in question xxxxx 'It is also to be remarked that there is a clear distinction between those facts which involve the jurisdiction of the court over the parties and the subject-matter, and those quasi jurisdictional facts, without allegation of which the court cannot be set in motion, and without proof of which a decree should not be pronounced. In the absence of the former, the judgment of the court is void and may be attacked in collateral proceedings, while, in respect to the latter, it is conclusive, and cannot be questioned except on a direct proceeding.' (Black on Judgments. Second Edition, Vol. I, para 278.)

6. As noticed by Black himself in para 170 and by de Smith (at p. 100 of his book on Judicial Review of Administrative Action) not a little obscurity has resulted from the circumstances that terms such as 'void', 'voidable', 'invalid' and 'illegal' are often used inter-changeably. and the further circumstances, that even in juristic writing, expressions such as ''void', 'jurisdiction' and 'ultra vires' are used in different senses. A thing that is void in the strict sense of the word is a mere nullity and may be ignored even in collateral proceedings as if it never were. 'Void ab initio'' is the expression courts often use to make it clear that they mean 'void' in the strict sense of the word And yet courts do often use the word, and even expressions such as 'null and void' and 'nullity', as an emphatic way of saying that an order, is so clearly illegal that it is to be readily set aside. Therefore, in cases where an order is directly attacked, the use of such expressions even by the highest tribunals is no certain indication of the real nature of the order it might mean no morn than that the order is voidable, or liable to be upset.

In its true sense the word, ''jurisdiction'' means inherent jurisdiction and vet it is often used, as in Section 115 of the C. P. C. in a special sense as meaning what we might call competency, or in the language of Black, as connoting 'those quasi jurisdictional facts without allegation of which the court cannot be set in motion, and without proof of which a decree should not be pronounced.' The expression, 'ultra vires' likewise, which strictly speaking implies an absence of jurisdiction, is often used to imply an absence of competency. Hence the use of expressions such as 'void', 'nullity', 'null and void', 'without jurisdiction', and 'ultra vires' in cases where the impugned order is under direct attack as in appeal or revision provides no safe guide for holding that the order is void in the strict sense of the word so that it is for all practical purposes non est and may be ignored in collateral proceedings.

7. The question really is nol so much whether, as some decisions put it the provisions of Order XXXVIII Rule 5(1) are mandatory or merely directory--even the breach of a man-datory provision does not necessarily make an order or judgment void though it would make it illegal, see Ittyavira Mathal v. Varkey Varkey, AIR 1964 SC 907 where the breach was of the mandatory provisions of Section 3 of the Limitation Act -- but whether compliance with those provisions is a condition precedent for the assumption of jurisdiction or whether, on the other hand, the provisions merely lay down the manner in which the jurisdiction is to be exercised. If it is the former, non-compliance would make the order void; but, if the latter, non-compliance would only make the order voidable. The order would be liable to be set aside but, until that is done, it would be operative and cannot be ignored or collaterally attacked. On this question we do not think that we can do beller than repeat what was said in Dhian Singh v. Secy, of State. AIR 1946 Nag 97.

'Rule 5 of Order 38, C. P. C. is intended for the protection of the person whose propertv is sought to be attached before judgment. If he did not receive notice required by law and was consequently denied the privilege of staving off the attachment by the offer of security the injury would no doubl accrue to him but the law gives him a remedy by way of appeal under Order 43, Rule 1(q) from such an irregular order to get it sel aside ..... In Jang, Bahadut v. Bank of Upper India Ltd., AIR 1928 PC 162 their Lordships pointed out the difference between a matter of procedure and one of jurisdiction in these words:

'This is a matter of procedure and not of jurisdiction The jurisdiction over the subject-matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived, and party who lias acquiesced in the Court exercising it in a wrong way cannot afterwards turn round and challenge the legality of the proceedings.' This is what was pointed out in Devidas v. Nilkanthrao ILR (1936) Nag 73: (AIR 1986 Nag 157). following the various decisions of the Privy Council. It was clearly shown there that jurisdiction is entirely independent of the manner of its exercise. The distinction between the two is that error of judgment is reversible by the appellate court within a certain fixed time and is therefore voidable, whereas the usurpation of power is a mere nullity. The jurisdiction of the Court to attach property before judgment is indicated by the words 'if so prescribed in Section 94, and that condition is satisfied when rules are made to order attachment of any property of the defendant. The meaning of the expression 'if so prescribed' would he clear when they are compared with the words 'subject to such conditions and limitations as may he prescribed' occurring in Section 107, C, P. C. 'Prescribed' means prescribed by rules (see Section 2(16) C. P. C. ). In the latter case if the rules prescribe any conditions or limitations as affecting the jurisdiction of the Court, the jurisdiction cannot arise unless the conditions or limitations are satisfied. Section 94 merely says ''so prescribed' and does not like Section 107 say 'subject to conditions and limitations as may be prescribed.' Rules 5 and 6 of Order 38 bring into effect the jurisdiction that is conferred by Section 94 in so far as they make it clear that the Court has power to order attachment before judgment. In the absence of words such as those used in Section 107(1), C. P, C. the other provisions made in Rules 5 and 6 of Order 38 must be interpreted as laying down the manner in which the Court's jurisdiction is to be exercised, and accordingly regarded as dealing with matters of procedure regulating the mode of exercise of a jurisdiction that exists. On this view any error in the manner of the exercise of the jurisdiction conferred by Section 94 would not affect the validity of the Court's acl if the Court's jurisdiction is derived from a source independent of the provisions which merely prescribe the manner of its exercise.'

8. Other decisions taking the same view are B. Prag Nath v. Mt. Indra Dcvi. AIR 1934 All 456, Dwarka Das Badri Das v. Siri Ram, ILR (1937) 18 Lab 756 : (AIR 1938 Lah 49). Ayyappan Pillay v. Govinda Kurup. 1949 Trav LR 144, Badri Prasad v. Babulal, AIR 1950 Cal 368 and Gaya Thakur v. Bhagwal Prasad, AIR 1963 Pal 286. With the contrary view taken or indicated in Abdul Karim v. Nur Mohammed, AIR 1920 Cal 526. Pillar Singb v. Ram Chan-der, AIR 1934 All 165 and Ramehwardaval v. Rheemsen, AIR 1951 Madh B 82 (2) we are, with great respect, unable to agree. The remaining cases dealing with an attachment under the provisions of Order XXXVIII cited on behalf of the accused only lay down, what cannot be doubted, that an order of attachment without compliance with the provisions of Rule a is it legal, not that it is void.

9. The case considered in AIR 1945 Nag-97 was of an absolute attachment under Rule 6 of Order XXXVIII without any attempt at compliance with the provisions of Rule 5, Under the scheme of Order XXXVIII it is only after a direc-tion has been issued under Sub-rule (1) of Rule 5 and the defendant has been given an opportunity to show cause that an absolute attachment can be made. But the conditional attachment under Sub-rule (3) of Rule 5 is to be ordered ex parte. before the direction under Sub-rule(i) is communicated to the defendant, and before he has had an opportunity of showing cause. A conditional attachment ordered under Sub-rule (3) of Rule 5 without complying with the provisions of that rule therefore stands on a stronger footing than an absolute attachment order under Rule 6 without such compliance.

10. We think a dislinclion must be drawn between a judgment or order of a court of law and an act such as an attachment, or a sale, or a search, or the recording of a confession under Section 164 of the C. P. C. performed by a court or oilier authority in exercise of statutory power. In the latter case, where a power is given to do a certain thing in a certain way that might carry the implication that the thing must be done in that way or not at all and that other methods of performance are necessarily forbidden. Or it might be that a particular step prescribed by a statute is an essential ingredient of the act itself. In either case the act done without compliance with the statutory requirement would be legally ineffective and may therefore, he properly described as void, and, among other resulls, would he the result that resistance to such an act. involving unlawful invasion of private rights, would be no offence.

But in the former case, when the judgment or order is within the jurisdiction of the court, it is effective until il is set aside however irregular or erroneous it might he and it cannot he impugned in collateral proceedings. If this distinction is borne in mind cases such as Nazir Ahmad v. King Emperor AIR 1936 PC 253 (2), State of Uttar Pradesh v. Singhara Singh, AIR 1964 SC 358, Muthiah Chetty v. Pal-aniappa Chelty, AIR 1928 PC 139, Monoharlal v. Bengal Immunity Co., AIR 1945 Cal 308, Venkateswara Ettn. Naicker v. Ayyammal, AIR 1950 Mad 367, Eravi Filial v. Maluk Moham-mad, ATR 1953 Trav Co. 494 (FB), Srikakula Chinna v. Pannapali Elias, AIR 1954 Mad 1024 and State of Rajasthan v. Rehman, AIR 1960 SC 210 on which such strong reliance is placed on behalf of the accused will be found to have no real hearing on the queslion we are considering.

11. Our attention has been drawn to the observation in paragraph 13 of the report in Chandra Deo v. Prokash Chandra. AIR 1968 SC 1430 to the effect that failure to record reasons as enjoined by Section 203 of the Criminal Procedure Code before dismissing a com-laint under the provisions of that section is an error going to the root of the matter and that il is possible to say that the absence of reasons would make the order a nullity. Their Lordships did nol actually pronounce the order a nullity -- what they did was to set it aside. What they said was that it was possible to say so and we venture to think that the word, ' nullity' was used to indicate not that the order of dismissal was void stricto sensu and therefore non est, but that there was an illegality going to the root of the matter not a mere error, omission or irregularity which could be cured under Section 537 of the Criminal Procedure Code.

12. Our answer to the question is that the order of attachment in this case, though erroneous and liable to be set aside in appropriate proceedings, is an order made with jurisdiction and is not a nullity. It cannot be ignored or subjected to attack in collateral proceedings.


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