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Yuna Ramanayakudu and ors. Vs. Boya Pedda Basappa and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in50Ind.Cas.261; (1919)36MLJ284
AppellantYuna Ramanayakudu and ors.
RespondentBoya Pedda Basappa and ors.
Excerpt:
- 1. section 64 of the code of civil procedure says that 'where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all the claims enforceable under the attachment.' the only question for decision in this case is whether on the date of plaintiff's lease the attachment had been made. no doubt an order had been passed a few days before the lease ordering attachment, but order xxi rule 54 of the code of civil procedure lays down the manner in which an attachment of an immoveable property has to be made, and those provisions were not complied with until long after the lease was executed. it is contended.....
Judgment:

1. Section 64 of the Code of Civil Procedure says that 'where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all the claims enforceable under the attachment.' The only question for decision in this case is whether on the date of plaintiff's lease the attachment had been made. No doubt an order had been passed a few days before the lease ordering attachment, but Order XXI Rule 54 of the Code of Civil Procedure lays down the manner in which an attachment of an immoveable property has to be made, and those provisions were not complied with until long after the lease was executed. It is contended that the mere writing of an order to attach is sufficient to constitute attachment, but the rule says that the order must be one 'prohibiting' the judgment-debtor and we think that in order to make an order prohibitive the person prohibited must have the opportunity afforded by the publication mentioned in Clause 2 of Rule 54, of knowing that he is so prohibited and the mere writing of such an order behind the judgment-debtor's back and keeping it in the court records would not amount to an order prohibiting within the meaning of Rule 54. A perusal of Rules 43, 44, 46, 47, 48 and 51 to 53 of Order XXI shows that the principle underlying the procedure in each case is to make the attachment known to the person affected by the Order. In this view no attachment of the property had been made in this case and the lower Court's decree is right. Under Section 64 of the Code of Civil Procedure no question of the bona fides of the alienee arises; so this aspect of the case need not be considered.

2. The second appeal is dismissed with costs.


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