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Maqanlal Bechardas Vs. Shah Kesharimal Dalichand and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtGujarat High Court
Decided On
Judge
Reported in(1961)2GLR625
AppellantMaqanlal Bechardas
RespondentShah Kesharimal Dalichand and ors.
Cases ReferredThe Bank of India v. John Bowman. That
Excerpt:
- - the judgment-debtors failed to pay the decretal amount in accordance with the terms of the consent decree and, thereupon, the 2nd opponent took out execution proceedings, being darkhast no......1st opponent pleaded that at the time when the court held the public auction and he purchased the property in question the judgment-debtors had no right title or interest in the property in question which they could transfer to him by reason of the fact that the same property together with two other properties had already been sold at a public auction by the mamlatdar on the 25th november 1957. the 1st opponent therefore asked that in view of these circumstances the court should set aside the sale in his favour under the provisions of 0. 21 r. 9 of the code of civil procedure. i may mention that mis application of the 1st opponent was opposed by the judgment creditor the 2nd opponent as also by all the judgment-debtors including the petitioner and by his reply ex. 16 he had contended in.....
Judgment:

J.M. Shelat, J.

1. This is a somewhat unusual Application in the sense that the petitioner, who in the executing Court took up the stand of having the auction sale held by the Court confirmed, has now taken a complete summersault and submitted that that very same auction sale which he wanted to have confirmed, should be set aside.

2. The 2nd opponent obtained a money decree in suit No. 172 of 1953 on the 12th of October 1954 against the firm of Mody Dayaram Bechardas, in which firm the petitioner was a partner along with opponent No. 3. That was a consent decree. Under the decree a first charge was created in respect of the decretal amount on a house belonging to the judgment-debtors and an order of attachment before judgment of that house was issued when the suit was filed. The judgment-debtors failed to pay the decretal amount in accordance with the terms of the consent decree and, thereupon, the 2nd opponent took out execution proceedings, being Darkhast No. 72 of 1956 in the Court of the Civil Judge (Senior Division), Broach, to recover the decretal amount by enforcing the charge and by having opponent however filed an application No. 63 of 1957 praying that the property purchased by him at the auction sale had already been sold alongwith two other properties of the judgment debtors at an auction sale by the Mamlatdar Broach on the 25th of November 1957 for a sum of Rs. 9500/-. The 1st opponent pleaded that at the time when the Court held the public auction and he purchased the property in question the judgment-debtors had no right title or interest in the property in question which they could transfer to him by reason of the fact that the same property together with two other properties had already been sold at a public auction by the Mamlatdar on the 25th November 1957. The 1st opponent therefore asked that in view of these circumstances the Court should set aside the sale in his favour under the provisions of 0. 21 R. 9 of the Code of Civil Procedure. I may mention that mis application of the 1st opponent was opposed by the judgment creditor the 2nd opponent as also by all the judgment-debtors including the petitioner and by his reply Ex. 16 he had contended in the executing Court that the sale in favour of the purchaser at the public auction held by the Court should be confirmed. The trial Court dismissed the application of the 1st opponent and confirmed the sale in his favour. The 1st opponent appears to have been content with the order passed by the trial Court but the petitioner who in the trial Court had asserted that the sale in his favour should be confirmed filed an appeal against the order passed by the trial Court confirming the sale which confirmation he in fact had asked for in his reply Ex. 16. The learned District Judge dismissed that appeal holding (1) that the petitioner could not be said to be a person aggrieved by the order passed by the learned trial Judge and (2) that on merits also the order passed by the trial Judge was correct.

3. Mr. Desai who appears for the petitioner has argued that even though may not be said to be a party aggrieved by the order passed by the learned trial Judge he was affected by the order passed by the trial Court and therefore he had a right to appeal. Apart from the question however whether he had a right to appeal or not the petitioner has in my view no case on merits whatsoever.

4. There is no dispute that the property in question was under attachment from as early as the 12th of October 1954 under an order passed by the Court under 0. 38 R. 5 of the Code of Civil Procedure. The decree was passed as I have said on the 12th of October 1954 and the attachment which was levied on the property on the 12th of October 1954 remained all throughout and even after the decree was passed. The question is whether while that attachment was still continuing the Mamlatdar Broach could have sold the property in question together with two other properties belonging to the judgment-debtors as he purported to do on the 25th of November 1957.

Under Section 64 of the Code of Civil Procedure when a property is attached two results follow: (1) that a private transfer or delivery of the property attached or of any interest therein contrary to such attachment shall be void as against all claims enforceable under the attachment and (2) that the attaching creditor acquires the right to have the attached property kept in custodia legis for the satisfaction of his debts and an unlawful interference with that right constitutes an actionable wrong. That being the position the revenue authorities were not competent to deal with the property which was under attachment under the order of the Court. In other words the Mamlatdar Broach had no authority to have the property in question sold by public auction which he purported to do on the 25th of November 1957 so long as that property was under attachment and therefore in the custody of the Court.

5. Mr. Desai however sought to argue that under Section 155 of the Land Revenue Code the Collector has a right to sell the right title and interest of a person who has committed default in the payment of arrears of the land revenue in an immoveable property belonging to such a defaulter. He contended that since both the Court as also the Collector had a right to sell the properties if the Collector has sold the property under Section 155 of the Land Revenue Code the Court would have no jurisdiction to set aside that sale or to declare such a sale invalid. There is however an obvious fallacy in that argument for Mr. Desai seems to forget that the property was under attachment long before the Mamlatdar Broach purported to sell it. He also seems to be oblivious of the legal implications that arise from an attachment of a property. As I have already observed once a property is brought under attachment by an order of a Civil Court the property is in custodia legis and a revenue authority has no right or power to remove that property from the custody of the Court and to deal with that property. Mr. Desai sought to rely upon a decision of the Allahabad High Court in Master Bhanpal Singh v. Siva Ram and Ors. A.I.R. 1942 Allahabad 442. Mr. Desai argued that this decision laid down the proposition that even if the property was attached in pursuance of an execution application and a sale by the revenue authorities takes place thereafter the Government having a prior claim in respect of arrears of land revenue such a sale should be confirmed and cannot be objected to. At page 443 of the report however the learned Judge who gave the decision has himself stated that when the property in question was attached the objector came into court stating that the property was his because he had acquired it at sale held for the purpose of recovering Government dues. These observations in the judgment would seem to indicate that attachment of the property in question took place after the sale in favour of the objector had taken place for the satisfaction of the Government dues. This view of the judgment appears to be confirmed from a statement made later on in the same judgment where it is stated that where an objector takes an objection to an attachment by the Court and the Court finds that the steps mentioned in the execution application cannot be taken that is to say by reason of the fact that the property was already sold before the attachment could take place it must follow that the application must be dismissed. This decision cited by Mr. Desai therefore does not appear to support the contention which he sought to propound before me. There is however a clear authority to be found in The Bank of India v. John Bowman 57 Bombay L.R. 345 in which under an agreement the Government of Bombay agreed to advance a certain sum to a Company for a stated period. The advance was guaranteed by the directors of the Company including the respondent and under the agreement the respondent along with the otter directors of the Company agreed mat the sum payable by them was recoverable by Government as arrears of land revenue. There was default in payment of the amount and the Secretary to the Government requested the Collector of Bombay to recover a certain amount from the respondent under Section 13 of the Bombay City Land Revenue Code 1876 The Collector issued a warrant of attachment against three immoveable properties of the respondent and thereafter gave notice of the date of the sale of those properties by public auction. The petitioners filed a petition challenging the attachment levied by the Collector and requested the Court to prevent the Collector from selling the properties under attachment. The petitioner had advanced a sum of money to the Company and the respondent had guaranteed this loan. The petitioner filed a suit to realise this loan and a consent decree was passed in the suit whereby the respondent along with the other directors of the Company made himself liable to pay the decretal amount. In the execution of the decree the petitioner obtained from the High Court a warrant of attachment of the very same properties of the respondent and this was followed by a warrant of sale of the properties. It was held that it was only the High Court that had the authority to sell the respondents properties as a consequence of the properties having been attached by the petitioner by order of the Court and that the Collector should not disturb that attachment nor could be take the properties out of the custody of the Court. It was also held that the proper procedure for Government to follow in such a case would be to make an application to the executing Court for payment of the amount due to it in priority to the debt of the petitioner Chagla C.J. & Dixit J. there held that once a valid order of attachment has been made by a Civil Court the revenue authority has no right to sell the property in enforcement of its own attachment so long as the attachment of the Civil Court continues. The property must be sold by the Court and it is only in execution proceedings in the Civil Court that the question of the right of the State to claim its priority to those of the judgment-creditors can arise and can be decided and determined. This case is a clear authority on all fours with the present case. It follows from the decision in The Bank of India v, John Bowman that the revenue authorities in the instant case had no right or authority to interfere with the custody of the property which was in the court when the Mamlatdar. Broach purported to sell the properties on the 25th of November 1957 and the proper remedy for the Mamlatdar or the Collector of Broach was to follow the procedure laid down in The Bank of India v. John Bowman. That being the position in law the learned District Judge was right in dismissing the petitioners appeal and upholding the sale by public auction made by the executing Court on the 27th of November 1957.


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