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Ouseph Skaria of Naduvilaparambil and ors. Vs. Cherian Joseph of Pooppallil and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtKerala High Court
Decided On
Case NumberSecond Appeal Nos. 451, 707 and 896 of 1963
Judge
Reported inAIR1965Ker288
ActsTransfer Property Act, 1908 - Sections 42 and 53; Code of Civil Procedure (CPC) , 1908 - Sections 151 - Order 38, Rules 5 and 8 - Order 21, Rule 42 and 63
AppellantOuseph Skaria of Naduvilaparambil and ors.
RespondentCherian Joseph of Pooppallil and ors.
Appellant Advocate P.K. Krishnankutty Menon, Adv. in S.A. No. 451 of 1963,; S. Bhoothalinga Iyer, Adv. in S.A. No. 707 o
Respondent Advocate George Vadakkel and; Varghese Kalliath, Advs. for Nos. 1 and 2,;and;
DispositionAppeals dismissed
Cases Referred and Jagat Tarini Dassi v. Surajranjan Pal
Excerpt:
civil - attachment - order 38 rules 5 and 8 and order 21 rules 42 and 63 of code of civil procedure, 1908 - availability of easier remedy by itself no bar to person pursuing more difficult remedy - order 21 rule 42 makes special provision in respect of preliminary decrees of kind mentioned therein but that does not imply that right to obtain attachment under order 38 rule 5 in respect of final decree yet to be passed taken away - person obtained preliminary decree under order 21 rule 42 but still to obtain final executable decree has both reliefs available to him. - - 103 of 1117 of the district court, alleppey) this court passed a preliminary decree directing the 1st defendant (who was the 1st defendant there as well) to account to the plaintiff (who was the 2nd plaintiff there) for.....p.t. raman nayar, j. 1. the plaintiff in these three cases is the same person. so is the 1st defendant. the 2nd defendant in each ease is a son of the 1st defendant, and the suits were brought to make the properties gifted by the 1st defendant, to these three sons available for satisfying a decree obtained by the plaintiff against the 1st defendant.2. in a. s. no. 374 of 1124 (from o. s. no. 103 of 1117 of the district court, alleppey) this court passed a preliminary decree directing the 1st defendant (who was the 1st defendant there as well) to account to the plaintiff (who was the 2nd plaintiff there) for the latter's share of the profits from about 130 acres of wet land (the somathuram lands as they have been called) of which the 1st defendant was in sole possession and enjoyment but.....
Judgment:

P.T. Raman Nayar, J.

1. The plaintiff in these three cases is the same person. So is the 1st defendant. The 2nd defendant in each ease is a son of the 1st defendant, and the suits were brought to make the properties gifted by the 1st defendant, to these three sons available for satisfying a decree obtained by the plaintiff against the 1st defendant.

2. In A. S. No. 374 of 1124 (from O. S. No. 103 of 1117 of the District Court, Alleppey) this court passed a preliminary decree directing the 1st defendant (who was the 1st defendant there as well) to account to the plaintiff (who was the 2nd plaintiff there) for the latter's share of the profits from about 130 acres of wet land (the Somathuram lands as they have been called) of which the 1st defendant was in sole possession and enjoyment but in a substantial share of which it found that the plaintiff had a leasehold right. This was on 17-11-1953. The accounting was to be from 1118 M. E. (1942-43 A. D.) till the date of the passing of the final decree, and the suit went back to the trial court for passing a final decree after ascertaining the profits for this period. The suit was then transferred to the Sub-Court, Alleppy where it was heard as O. S. No. 44 of 1957. On 23-12-1957, the trial court passed a final decree for Rs. 2 lakhs and odd in favour of the plaintiff. However, on appeal to this court, the amount was reduced to rupees 1,61,000/- and odd.

Meanwhile, in July and August 1959, the 1st defendant had executed the deeds, Exts. P. 3 to P. 6, purporting to gift about 130 acres of wet land (not the Somathuram lands) in separate portions to his four sons. On getting to know of this, the plaintiff had on 8-10-1956, made an application, Ext. P. 12, to the trial court praying for attachment before judgment of the properties covered by the gift deeds on the allegation that these deeds were sham and nominal transactions and that the 1st defendant was proceeding to dispose of all his properties with intent to obstruct and delay the execution of the decree that was to be passed against him in the suit. A conditional attachment under Sub-rule (5) of rule 5 of Order XXXVIII of the Code was also sought. This was ordered, and, it would appear, effected on the same day. In December 1956 and January 1957, three of the four sons (the 2nd defendants in the present suits and the appellants herein) preferred the claims, Exts. P. 10, P. 11 and P. 13 to the properties attached and prayed that the properties be released from the attachment. For some reason or other, the application for attachment and the claims were being posted along with the suit itself, and, On 23-12-1957, the date on which it pronounced the final judgment in the suit, the court made an order dismissing the application for attachment before judgment and raising the conditional attachment already effected on the ground that it was Order XXI rule 42 and not Order XXXVIII rule 5 that really applied and that the application for attachment should have been made to the executing court. It did not, however, as it perhaps should have done, decline to adjudicate on the claims, but, on the contrary on the same day allowed the claims although the reason it gave was that the attachment was raised by the order made in the application for attachment before judgment.

On 22-12-1958, just within a year of the order allowing the claims, the plaintiff brought the present suits praying:

(1) That the claim orders be set aside;

(2) that a declaration be given that the gifts were sham and nominal and that the properties still belonged to the 1st defendant and were attachable for his debts and that therefore the attachment levied by the plaintiff was valid; and

(3.) in the alternative, in case the gifts are found to be real, then that they be declared to be fraudulent transfers, made with intent to defeat and delay the creditors of the 1st defendant, and therefore void as against the creditors.

The suits, I may add, were brought on behalf of all the creditors of the 1st defendant with leave obtained under Order I rule 8 of the Code.

3. The suits have been decreed by the courts below, and hence these appeals by the donees, namely the 2nd defendants.

4. The plaintiff also brought two insolvency petitions (I. P. Nos. 25 of 1956 and 34 of 1958) against the 1st defendant, the former, before the final decree, relying on the gilts as acts of insolvency and, the latter, after the final decree, relying on some other act of insolvency. Both petitions were allowed by the insolvency Court. But, on appeal by the 1st defendant, the adjudication in the former petition was set aside on the ground that there was no ascertained sum due to the plaintiff, but that in the latter was affirmed. The properties are now in the hands of the Official Receiver who is a party to these appeals. We are, however, not here concerned with the insolvency petitions excepting for that they were heard with the suits and that the evidence of the 1st defendant recorded in I. P. 34 of 1958 was by common consent, treated as evidence in the suits and constitutes the only oral evidence adduced by the defendants.

5. A statement has been filed on behalf of the appellants showing the assets owned by the 1st defendant at the time he made the impugned gifts. (Documentary evidence regarding these assets was adduced at the trial in the shape of title deeds, and the statement is a collation of those documents). Even according to this statement the only property owned by the 1st defendant, apart from the properties covered by the impugned deeds, was (leaving out of account, debts secured and unsecured, decreed and otherwise, not readily available to a creditor) about 45 acres of wet lands worth about Rs. 47,000/-and a leasehold interest in about five acres of wet land valued at about Rs. 2,500/. (The statement also includes about 64-acres of the Somatnuram lands bought by the 1st defendant in the names of his sons, But that, it is everybody's case, belongs to the sons and must therefore necessarily be ignored). Thus, after making the gifts oft about 130 acres of land, worth roughly Rs. 1,30,000/-, all the property the 1st defendant retained for himself which could be easily got at by his creditors was, even taking the leasehold lands into consideration, worth only about Rs. 49,000/-. No provision of any kind was made for satisfying the claim of the plaintiff in O. S. No. 44 of of 1957, and, as the event showed, and as the 1st defendant must reasonably have apprehended, the property retained by the 1st defendant was utterly inadequate to meet the claim even as reduced by this Court in appeal. The gifts to the sons were made at a time when the final decree in the suit was imminent and when the 1st defendant must have known that the decree would be for a very large sum, at any rate not less than Rs. 1,50,000/-. The sons did not get into the box to support the gifts in their favour, and, as we have seen, the only oral evidence adduced by them was that of the 1st defendant. That evidence was to the effect that, even at the time of his examination he was in possession of the properties covered by the gift deeds. In the circumstances, it is legitimate to infer, as the courts below have done, that the gift deeds were executed by the 1st defendant with intent to make the properties unavailable to the plaintiff and to his other creditors (if any), and I am unable to discover any error of law in this finding.

6. It is said that the 1st defendant was more than 75 years old when he executed the gift deeds and that his sons were all over 35 and that it was only natural that a person in that position should have thought of dividing his properties between his sons, I agree that that would be natural. But, when we find that this natural desire of an old man, who had not many years to live waited until a decree for a very large sum was about to be passed against him, and found expression in a manner leaving virtually no assets for the satisfaction of the decree, I think it only natural to assume that the predominant motive was not the division of the property between the sons (for whom the 1st defendant had already made ample provisionby the purchase of the valuable Somathuram lands in their names) but the evasion of the decree. The 1st defendant's own evidence is not that he made the gifts with a view to give his properties to his sons, but that he did so because his lawyers advised him to do so because land reforms were impending and also because otherwise estate duty would have to be paid on his death. A person who took legal advice for the purpose of preserving his estate to the best advantage could hardly have been unalive to the fact that, if he kept the properties until the plaintiff obtained the final decree, the properties would be proceeded against in execution and there would be nothing left to be preserved. And this, I have no doubt, must have been the main consideration.

7. It is contended that, in saying that the evidence of the 1st defendant was to the effect that he was still in possession of the lands covered by the gift deeds, the Courts below misread his evidence and that I am making the same mistake. But I have been taken through the evidence a number of times and I am satisfied that there is no mistake. (His Lordship referred to the evidence and proceeded.)

8. There can thus be no doubt that the gift deeds were executed with intent to defeat the plaintiff and other creditors, if any. of the 1st defendant. There are two possibilities, and only two. The deeds might have been mere sham, the properties being nominally put in the names of the sons so as to take them out of the reach of the creditors. Or, the gifts may be real but with the same object. In the former case, the transfers would, in truth, be non-existent and could be ignored. In the latter, they would be fraudulent transfers liable to be avoided under section 53 of the Transfer of Property Act. The whole thing is a matter of intention which can only he inferred, and, all that a creditor can allege, and, in the majority of cases all that a court can find is either that the purported transfer is sham and nominal, or, if real, that it was made with intent to defeat and delay creditors. The attack on the frame of the plaint and on the finding of the first court that two mutually inconsistent cases, namely, that the gifts were sham and nominal and were also fraudulent transfers coming within section 53 of the Transfer of Property Act, were put forward and accepted is entirely misconceived. The case as put forward in the plaint and as found by the first court was not that the gifts were at the same time both sham and real; it was in the alternative, that the gifts were sham, but, if real, were fraudulent and liable to be set aside under section 53 of the Transfer of Property Act. The lower appellate court, while observing that the first court had found that the gifts were sham, did not itself give an express finding to that effect but contented itself with the finding that the gifts were fraudulent transfers hit by Section 53 of the Transfer of Property Act. In other words, it did not go to the extent of positively finding that the gifts were sham, but was content to assume that the gifts were real and find that, on that assumption, they were fraudulent transfers coming within section 53 of the Transfer of Property Act. As I have already remarked, in cases like this, intention being a matter of inference from the circumstances, it is rarely possible for a Court to give a positive finding one way or the other and finding in the alternative, or a finding of the lessor of the two alternatives, which is what the finding of the lower appellate Court in these cases amounts to, seems to be perfectly legitimate.

9. So much for the findings of fact. Two points of law are taken on behalf of the appellants, the first, common to all the appellants, that the plaintiff has no right of suit, and the second, confined to the appellants in S. A. Nos. 707 and 896 who were both parties to O. S. No. 44 of 1957 (the appellant in S. A. No. 451 was not a party to that suit) that the suits are barred by Section 47 of the Civil Procedure Code.

10. Although no provision of law was cited in the plaint, the provisions on which the plaintiff bases his right to sue are: Order 21 rule 63 of the Civil Procedure Code, section 53 of the Transfer of Property Act and Section 42 of the Specific Relief Act. It-is said that none of these provisions are available. Order 21 rule 63 does not apply because there was, in the eye of the law, no attachment, the attachment purporting to have been made under Order 38, Rule 5, a provision that has no application whatsoever, being a nullity. Section 53 of the Transfer of Property Act does not apply because the primary finding of the Court was that gifts were sham and the section applies only to real and not to sham transfers. And section 42 of the Specific Relief Act does not apply because, as to the properties covered by the gift deeds, the plaintiff has no substantive right, and in any case, because the plaintiff has made out no case why the Court should exercise its discretion under that section in his favour.

11. The argument that there was no attachment in law is based on the contention that, after the passing of the preliminary decree, attachment could have been levied only by the executing Court under Order 21, Rule 42 and not by the trial Court under Order 38, Rule 5 which applied only when there is a decree to be passed in the future and not when there is already a decree. I am quite unable to accept this argument, I shall first consider whether, on its terms, Order 38, Rule 5 applies. The heading given above this rule is 'Attach-ment before judgment', and, even, if a mere heading were to be allowed to govern the construction of a statutory provision, the condition, namely, that the attachment must he before judgment, is, in this case, satisfied. It is true that there was already a judgment in the case, namely, the preliminary judgment made by this Court in A. S. No. 374 of 1124. But there was a judgment still to come, namely the final judgment that was to be passed by the trial Court, and in relation to that judgment (which I might add was the only judgment that could result in an executable decree) the attachment was certainly an attachment before judgment.

If we turn next to the rule itself, what we find is that it is meant for cases where, with intent to obstruct or delay the execution o any decree that may be passed against him in the future, the defendant does the acts specified in the rule. Here although there was already a decree passed against the 1st defendant, that was not an executable decree--and obviously it is an executable decree that is contem-plated by the rule--and an executable decree was still to be passed against him. The Court was apparently satisfied by the affidavit filed in support of the application for attachment before judgment that the defendant was, with intent to obstruct or delay the execution of the final decree that was to be passed against him, about to do the acts specified in the rule when it ordered conditional attachment under sub-rule (3) of the rule. All the requirements of the rule are thus satisfied, and I am quite unable to subscribe to the view taken by the trial Court, when it eventually dismissed the application for attachment be-fore judgment, that Order 38, Rule 5 has no application,

12. I am not impressed with the argument ad-vanced on behalf of the plaintiff that the preliminary decree we are considering is not one coming within Order XXI rule 42. I think that it is a decree of the kind described in that rule and that, on the basis of that preliminary decree, the plaintiff could have obtained an attachment under that rule. But I see nothing in that rule, which applies in relalion to a preliminary decree already passed, to exclude the operation of Order XXXVIII, rule 5 in relation to the final decree yet to be passed; and I am unable to accept the argument that, once a plaintiff obtains a preliminary decree of the kind mentioned in Order XXI, rule 42 he can have recourse only to that rule and cannot, even though the decree which he can execute is yet to be passed, have recourse to Order 38, rule 5. It might be true enough to say that Order XXI, rule 42 makes special provision in respect of prelimi-nary decrees of the kind mentioned therein. But that does not imply that the right to obtain an attachment under Order XXXVIII rule 5 in respect of the final decree yet to be passed is taken away. It seems to me that, to a person who has obtained a preliminary decree of the kind mentioned in Order XXI Rule 42 but has still to obtain a final executable decree, both reliefs are available. He can attach the properties of the defendant before judgment under Order XXXVIII rule 5 in which case he will have to prove that the defendant is about to commit the acts specified in that rule with intent to obstruct or delay the execu-tion of the decree to he passed and he will get an attachment only if security is not furnished. Or, he can avail himself of the easier remedy under Order XXI, rule 42, where he can obtain an attachment without proving the conditions specified in Order XXXVIII, rule 5 and without giving the defendant the option of furnishing security. But that an easier remedy is available can be no bar to the pursuit of a more difficult remedy so long as theconditions underwhich that remedy is available are satisfied. Order XXXVIII, rule 5 imposes rather stringent conditions because there is no knowing whether the plaintiff will get a decree at all. But, when a preliminary decree of the kind referred to in Order XXI rule 42 has been passed, it is fairly certain that the plaintiff will eventually obtain a decree for money, only the quantum remaining to be determined. Hence the less stringent conditions of Order XXI, rule 42. But, as I nave already said, that an easier remedy is available is, by itself, no bar to a person pursuing a more difficult remedy.

13. That the fact that there has already been a decree, whether executable or not, in the suit is no impediment to an application under Order XXXVIII, rule 5 so long as a further decree is possible is clear from the decisions in Jogemaya Dassi v. Baidyanath, AIR 1919 Cal 258 (2), Shyam Lal v. Bahal Bai, A I R 1936 All 408 and Gopaldas Hiralal v. Mahadu Dagdu, AIR 1943 Bom 24. And I am quite unable to appreciate the argument that the words, 'any decree that may be passed against him' appearing in the rule precludes an application where a further decree is not merely a possibility but is a certainty.

14. There can be no doubt that the trial court had inherent jurisdiction to order an attachment under Order XXXVIII, rule 5 (3) in the sense that it had jurisdiction over the subject-matter. And, even if it be that that provision has really no application, its order would not be a nullity although there might be an error of jurisdiction in the narrower sense in which that word is used in section 115 of the Code as meaning competency. The order may be liable to be set aside in appeal or revision. But, so long as it stands, it is an effective order and cannot be ignored as void. That being so, the consequence follows that, even if the attachment was not properly ordered under Order XXXVIII, rule 5, the provisions of rule 8 of the Order, and, with them the provisions of Order XXI, rule 63 are attracted. Decisions like Muthiah Chetti v. Palaniappa Chetti, AIR 1928 P C 139 and Maung Aung Hla v. Hamid Ali, AIR 1935 Rang 186 where there was, in fact, no attachment although there was an order for attachment, and Narayanan Madhava Panicker v. Ouseph, 1960 Ker L J 396 : (AIR 1960 Ker 332) where the order for attachment was held to be a nullity and there was therefore no attachment in the eye of the law although the physical process of an attachment was performed, have no bearing on the point.

15. There having been an attachment of the properties, an attachment which, in any view of the matter, was not void but was effective so long as it was not set aside, and claims made in respect of this attachment having been allowed, it follows that the plaintiff has a right of suit under Order XXI, Rule 63. And this he has whether the gift deeds in favourof the appellants were sham or were merely fraudulent within the meaning of section 53 of the Transfer of Property Act. See Abdul Shukoor v. Arji Papa Rao, AIR 1963 S C 1150 at p. 1159.

16. It is argued on behalf of the appellants in S. A. Nos. 707 and 896 of 1983 that, they being parties to the suit, their claims do not fall under Order XXI, rule 58 and that therefore, in their case, Order XXI, rule 83 is not attracted. This argument might have been valid enough had the claims been claims made in execution in which case the matter would have fallen within section 47 of the Code. In that case, the investigation would not be the summary investigation contemplated by Order XXI rule 58 and no separate suit would lie. The remedy would been appeal. But the present claims were claims, not in respect of an attachment effected in execution, but in respect of an attachment effected under Order XXXVIII, rule 5. It seems to me clear that rule 8 of Order XXXVIII contemplates also a claim by a person who is a party to the suit. Else it would mean that, when the property of a person, who is only a formal party to a suit, is attached before judgment as property belonging to the party against whom the relief is really claimed, there would be no remedy in respect of the attachment. If a claim by a party comes within Order XXXVUI, rule 8, then the fact that Order XXI, rule 58 applies only in respect of a claim by a person who is not a party to the suit will have no bearing on the question at hand, since all that rule 8 says is that a claim made thereunder shall be investigated in the manner provided for the investigation of claims to property attached in execution of a decree for the payment of money and not that claims made under the rule are to be dealt with under Order XXI, rule 58. And it is well settled, and indeed not disputed, that the investigation contemplated by rule 8 of Order XXXVIII (which rule applies in the case of a conditional attachment under Sub-rule 3 of rule 5) attracts the right of suit under rule 63 of Order XXI.

17. I have no doubt that the plaintiff has a right of suit under Order XXI, rule 63, and I do not think that it is really necessary to consider whether he has such a right under section 53 of the Transfer of Property Act or under section 42 of the Specific Relief Act. Since, however, these aspects o the matter have been argued before me at great length I shall consider them briefly.

The exclusion of section 53 of the Transfer of Property Act is based on the contention that that section has no application in the case of a sham transfer. But then it is not the case of the appellants that the gift deeds were sham or that the lower appellate court should have found that they were sham and not merely fraudulent. The expression, 'transfer of property' is defined by section 5 of the Transfer of Property Act as meaning an act by which a living person conveys property to one or more other living persons, and decisions have held that the expression 'transfer of immovable property' in section 53 of the Act can apply only when there has been an actual conveyance. (See Mulla's Transfer of Property Act, 4th Edition, pages 247 and 248). It might perhaps be too late in the day to take the view that the word 'transfer' in section 53 is wide enough to cover what passes for a transfer, in other words, a feigned or sham transfer. But if a creditor who is defeated or delayed thereby, has a right to sue to avoid a transfer which is real though fraudulent; a creditor defeated or delayed by a transfer which is sham and nominal should all the more have the right to sue in order to establish that the transfer should not stand in the way of his recovering his debt from the property in question. It is true that such a creditor can ignore the sham transfer as a mere nullity. But that he can do so does not mean that he cannot sue to establish his right to do so, in other words, his right to treat the transfer as void thus avoiding the transfer. And it seems to me that, if section 53 of the Transfer of Property Act was not really intended to apply to a sham transfer, it could only have been because a right of suit is given by section 42 of the Specific Relief Act. The policy of the law as disclosed both section 53 of the Transfer of Property Act and by rule 63 of Order XXI of the Code being that a defeated creditor should be enabled to proceed against the property of his debtor which has been transferred, whether really or only nominally, in order to defeat, there can be no reason why the application of section 42 of the Specific Relief Act should be excluded if its words apply or why the discretion vested in the court by that section should not be exercised in favour of a creditor who has been defeated by a sham transfer. Now, if we turn to section 42 of the Specific Relief Act we find that what that section requires is that the plaintiff should have a right as to any property which the defendant is denying or is interested to deny. As pointed out by Beaumont, C. J. in Jamnahai v. Datta-traya, A I R 1936 Bom 160, the words used are, 'right as to any property' which are much wider than, 'right to any property' and are wide enough to cover the right of a creditor to proceed against the property of his debtor for recovering his debt. And it is pertinent to note, as remarked in Narendra v. Bhikhabhai, A I R 1963 Guj 276, that rule 63 of Order XXI of the Code refers to this right of the creditor as a right to the property in dispute, so that there would appear to be no room for doubt that the words 'right as to any property' in section 42 of the Specific Relief Act are wide enough to cover such a right as well. With great respect I am not impressed with the distinction made in this connection in Maung Ba Maung v. Maung Ba Yin, A I R 1939 Rang 332 (FB) between procedural rights and substantive rights and I find no warrant for confining the operation of section 42 to what are called substantive rights. So long as the right claimed is a right as to any property I should think that section 42 of the Specific Relief Act applies whether the right be substantive or merely procedural, and, in any case, I should have thought that the right of a creditor to realise his debt from the property of his debtor is a substantive right, although the manner in which he effects the realisation, and the rights incidental thereto, might be merely procedural. A creditor who is defeated by a sham transfer of property is a person entitled to a right as to that property, and the debtor and his transferee being persons interested in denying that right, even if they have not actually denied it, there can be little doubt that a suit by the creditor for a declaration that the transfer is sham and that he is entitled to proceed against the property for the realisation of his debt, would lie under section 42 of the Specific Relief Act. And, where the conditions required for a suit under Order XXI rule 03 or under section 53 of the Trans-fer of Property Act are satisfied, I can think of no reason that can justify a court in declining to exercise its jurisdiction in his favour. With great respect, I am unable to subscribe to the view taken of the matter in A I R 1939 Rang 332, Krishnaveni Ammal v. Soundararajan, AIR 1945 Mad 53 and Subbaraidu v. Satyanarayana, AIR 1982 Andh Pra 25.

18. The argument advanced on behalf of the appellants in S. A. Nos. 707 and 896 of 1963 that section 47 of the Code is a bar to the present suit really stems from the contention that there was no valid attachment under Order XXXVIII, rule 5(3). I have already rejected the latter contention, and it necessarily follows that the former also must be rejected. The question here arising is whether the properties gifted to the appellants, who were parties to O. S. No. 44 of 1957 were liable to attachment before judgment in that suit. That does not relate to the execution, discharge or satisfaction of any decree in that suit, the only decree then existing being a preliminary decree which did not determine the sum due to the plaintiff and was therefore unexecutable. The fact that an executable decree was subsequently made does not affect the position, for, the right which the plaintiff seeks to establish in these suits is his right to attach the properties in question when he did attach them so that the executable final decree which he was at that time yet to obtain may not be defeated, not his right to attach the properties in execution of that decree. Therefore, even though the appellants in S. A. Nos. 707 and 898 of 1983 were parties to the suit in which an executable decree was eventually passed, the question that arises between them on the one hand and the plaintiff on the other is not a question relating to the execution, discharge or satisfaction of that decree so as to attract the bar in section 47 of the Code.

19. It has been contended that the attachment actually effected must be regarded as one effected under Order XXI, Rule 42, though purporting to have been effected under Order XXXVIII, Rule 5. We have already seen that that is not so. The application for attachment was expressly made under Order XXXVIII, Rule 5, and it was under Sub-rule (3) of that rule that the Court ordered the attachment. That order, as we have seen, is an order made with jurisdiction and valid so long as it is not set aside, and there can therefore be no question of the attachment having in fact, been made under Order XXI, Rule 42 and not under Order XXXVIII, Rule 5, even if the former were the proper provision of law to apply. And, with great respect to what has been said in Viraraghava v. Varada, ILR 5 Mad 123, Jai Narain v. Bankey Lal, AIR 1917 All 153, Ramasami Iyer v. Vedambal Ammal, AIR 1934 Mad 604 and Jagat Tarini Dassi v. Surajranjan Pal, AIR 1941 Cal 357 I doubt whether an attachment effected under Order XXI, Rule 42 can properly be called a proceeding in execution so that any question relating to such an attachment between the parties to the suit has the effect of attracting section 47 of the Code. A decree which merely directs an enquiry as to rent or mesne profits or any other matter is not a decree for the payment of money and is only a decree that can, as a result of the enquiry, give rise to such a decree. Such a decree is not executable in the sense in which that word is ordinarily understood and I fail to see how an attachment in pursuance of such a decree can relate to its execution, discharge or satisfaction. Under section 51 of the Code, attachment by itself is not a mode of execution. Execution is either by attachment or sale, or by sale without attachment of any property, and the argument that the words 'attachment and sale' appearing in Clause (b) of the section should be read disjunctively can scarcely be accepled since that would render the words, 'or by sale without attachment' appearing in the Clause otiose. Attachment is a process in execution but does not, of itself constitute execution. Order XXI, Rule 42, contemplates a mere attachment and nothing more, and, although it is with a view to facilitate the execution of the final decree that is yet to be passed, it can scarcely be regarded as the execution of a decree. That it appears in Order XXI is a mere matter of convenience and does not necessarily mean that it is a provision for execution, and I should think that the words, 'as in the case of an ordinary decree for the payment of money' mean no more than that the procedure to be followed for the attachment is the same as in the case of an ordinary decree for the payment of money. To my mind they bear much the same meaning as the words, 'in the manner provided for the attachment of property in execution of a decree' appearing in Order XXXVIII, Rule 7.

20. It is contended that all questions arising between the parties to the suit and relating to the execution, discharge or satisfaction of the decree made therein come within the scope of section 47 of the Code and that it is not necessary that the question should have actually arisen in execution or that there should be any execution at all. So long as the question is one between the parties to the suit and can be decided in execution, section 47 is attracted. That is so. But, as we have seen, the question here arising is whether the plaintiff was entitled to attach the properties under Order XXXVIII, Rule 5 before decree, and that is a question which cannot arise in or relate to the execution o the decree.

21. In the result I dismiss the appeals with costs.

22. Leave granted.


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