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Ganshamadas Girdhardas and ors. Vs. V. Sivaramasubramaniam and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.M.P. No. 12744 of 1984 in O.S.A. No. 22 of 1979
Judge
Reported inAIR1986Mad17
ActsCode of Civil Procedure (CPC), 1908 - Sections 141 and 151 - Order 38, Rule 5 - Order 21, Rule 42
AppellantGanshamadas Girdhardas and ors.
RespondentV. Sivaramasubramaniam and ors.
Appellant AdvocateShamadass, Adv. for ;L.V. Krishnaswami Iyer, Adv.
Respondent AdvocateAdvocate General for ;R. Mohan, Adv.
Cases ReferredManohar Lal v. Seth Hiralal
Excerpt:
.....151 and order 38 rule 5 and order 21 rule 42 of code of civil procedure, 1908 - application for attachment of property - petitioner prayed for attachment before judgment - order 21 rule 42 not applicable - no valid reason to invoke inherent powers under section 151 - application liable to be dismissed. - - 22 of 1979 is fully satisfied. 5. the next contention of the learned counsel for the petitioners is that the court can direct the respondents to furnish security or order the attachment of any property in order to prevent the ends of justice from being defeated. 94(b) runs thus -in order to prevent the ends of justice from being defeated the court may, if it is so prescribed, (a) .(b) direct the defendant to furnish security to produce any property belonging to him and to place..........defendant on the lands leased to him' and for possession of the buildings on the site and also for mesne profits at the rate of rs.12000 per month from 4-8-1968 till possession is handed over. (the affidavit does not say as to what decree was passed by the learned trial judge). but it is seen that the supreme court by its judgment dated 18-8-1971 in c-. a. 74 of 1971, : [1972]1scr291 , has passed a decree in respect of the first relief of declaration, but directed this court to determine the mesne profits in accordance with law. it is seen that the first defendant has delivered possession of the suit sites with the buildings on 24-3-1974. pending determination of mesne profits, the first defendant died and his legal representatives were brought on record. n. s. ramaswami, j., learned.....
Judgment:

Maheswaran, J.

1. The relief's prayed for in this application can be extracted in the words of the 14th appellant who has sworn to an affidavit in support of this application. The petitioners pray for orders of this Court directing -

(1) the attachment of the property viz., the buildings and structures and the land appurtenant thereto, at No. 77 and 77B, Omalur Main Road, Salem, belonging to the respondents and described in the schedule to the petition, already effected in E. P. 295 of 1979 in C S. 23 of 1964, on the file of the Sub Court, Salem, do continue pending disposal of O. S. A. 22 of 1979 so that suitable orders may be passed at the time of disposal of O. S. A. 22 of 1979; or

(2) the respondents herein do furnish security for the amount claimed in O. S. A. 22 of 1979 inclusive of further interest and costs; or

(3) the respondents herein be and are hereby restrained not to sell, encumber or otherwise alienate the property described in the schedule to the petition without obtaining the prior permission of this Court until the decree that may be passed in 0. S. A. 22 of 1979 is fully satisfied.

2. The facts as gathered from the rambling affidavit filed in support of the petition, shorn of all unnecessary details, may be stated. The appellants who are the petitioners filed a suit in O. S. A. 28 of 1964 for a declaration that 'the plaintiff-appellants are, as from 1-3-1964 the owners of the buildings and superstructures constructed by the first defendant on the lands leased to him' and for possession of the buildings on the site and also for mesne profits at the rate of Rs.12000 per month from 4-8-1968 till possession is handed over. (The affidavit does not say as to what decree was passed by the learned trial Judge). But it is seen that the Supreme Court by its judgment dated 18-8-1971 in C-. A. 74 of 1971, : [1972]1SCR291 , has passed a decree in respect of the first relief of declaration, but directed this court to determine the mesne profits in accordance with law. It is seen that the first defendant has delivered possession of the suit sites with the buildings on 24-3-1974. Pending determination of mesne profits, the first defendant died and his legal representatives were brought on record. N. S. Ramaswami, J., learned single Judge of this Court, fixed the mesne profits payable by the defendants at Rs.6250 per month from 4-8-1968 to 23-31974, with interest at 6 per cent. The appellants have now filed O. S. A. 22 of 1979 before this court for Rs. 8,12,075-15 (wrongly stated as Rs.8, 12,07-15 in the affidavit), being the difference between the amount claimed and the amount decreed with interest at 12 per cent. The petitioners say that they aft confident of their appeal being allowed and they would be entitled to nearly Rs.16, 00,000. It is further stated that the properties of the first defendant, Varadaraja Pillai, which are in the hands of the second defendant, at Nos. 77 and 77B. Omalur Main Road, were attached for realisation of the balance due under the decree dated 264-1977 but the said E. P. 295 of 1979 was closed on 10-7-1981, directing the attachment to continue and that another execution petition E. P. 113 of 1982, for sale of the property already attached in E. P. 295 of 1970 was filed and the same was pending and the balance of Rs.1, 11,525-51 is due under the decree of the trial Judge. The petitioners pray that the attachment already effected in E. P. 295 of 1979 in O. S. 28, of 1964 may be continued pending disposal of the O. S. Appeal, so that they may be able to realise the amount that may be decreed in the O. S. Appeal, as otherwise the first respondent may dispose of the property attached by sale.

3. This petition is resisted by the first respondent, son of Varadaraja Pillai, who says that this petition is second of its kind as the earlier petition in C. M. P. 9096 of 1984, for attachment before judgment was dismissed on merits, that the learned single Judge, after taking into consideration all the documentary evidence fixed the mesne profits at the rate of Rs.6250 per month, that the appellants have attached this theatre Central Talkies, and the unfinished theatre and that he has deposited the entire decree amount in E. P-115 of 1982, and the E. P. has been closed and no amount is due in respect of the decree passed on 26-41977. The first respondent further says that the claim of the plaintiffs at the rate of Rs.12000 per month is a tall claim and that there are no merits in the appeal. It is further stated that the entire decree amount has been paid and full satisfaction of the decree has been recorded and that the allegation that he is proposing to sell the property is not true.

4. Mr. Shama Dass, learned counsel for the petitioners, stated that the attachment can be made in the interests of justice under four provisions of law and they are: (1) Order, 38, Rule 5, C. P.C.; (2) Order 2 1, Rule 42, C. P. C. (3) S. 94, C. P. Q. and (4) S. 151, C. P. C. We must at the outset say that the affidavit filed by the 14th appellant is rather dubious. He has not disclosed the fact that full satisfaction of the decree has been recorded. If full satisfaction was recorded after the filing of this petition, the same could have been brought to our notice by a separate memo or an affidavit. That was also not done. The petitioners cannot invoke Order 38, Rule 5, C. P. C. as the petition already filed in C. M. P. 9096 of 1984, for attachment before judgment, has been dismissed by this court earlier. Further, Order 38, Rule 5, C. P. C. applies in terms to suits. The petitioners cannot invoke the aid of S. 141, C. P. C. which is to the effect that the procedure provided in the Code with regard .to suits can be followed as far as it is made applicable, in all proceedings in any Court of civil jurisdiction. S. 141 applies only the procedure under the Code to other proceedings in a court of civil jurisdiction and not substantive rights. In Philips v. Philips ILR(1910) Cal 613 a single Judge of Calcutta High Court held that an order for attachment before judgment is a matter of relief and not of procedure. Pugh, J. observed -

' I think it is purely a matter of relief to ask to be allowed to seize a man's property without having a decree on the off-chance that you may get a decree hereafter, and it seems to me to have nothing whatever to do with procedure. The way in which a decree is executed, after you have obtained it, is a matter of procedure; but to give one man a right to come to court before he gets a decree is to confer a right upon him, and that is not procedure.'

It therefore follows that the petitioners cannot invoke the provisions of S. 141 of the Code of Civil Procedure and consequently the petitioners cannot seek the relief under Order 38, Rule 5, C. P. C.

5. The next contention of the learned counsel for the petitioners is that the Court can direct the respondents to furnish security or order the attachment of any property in order to prevent the ends of justice from being defeated. In fact, the petitioners invoke the provisions of S. 94(b) of the Code of Civil Procedure. Sec. 94(b) runs thus -

'In order to prevent the ends of justice from being defeated the court may, if it is so prescribed,

(a) ........... ......... ........ ...........

(b) direct the defendant to furnish security to produce any property belonging to him and to place the same at the disposal of the court or order the attachment of any property;

(c) to (e) ............... .............. .............

The Supreme Court in Manohar Lal v. Seth Hiralal, : AIR1962SC527 had to consider the effect of the expression 'If it is so prescribed' in S. 94, C. P. C. when a question arose for decision before it, whether a court can issue a temporary injunction in the circumstances which are not covered by Order 39, C. P. C. The majority view was that there being no such expression in S. 94 which expressly prohibits the issue of a temporary injunction in the circumstances not covered by Order 39, or by any rules made under the Code, the courts have inherent jurisdiction to issue temporary injunction in circumstances which are not covered by the provisions of Order, if the court is of the opinion that the interest of justice requires issue of such interim injunction. This decision of the Supreme Court relates to grant of temporary injunction. Even assuming that the observations in the judgment may be applied to other orders referred to in Sec. 94, we are of the view that the interests of justice does not require attachment of properties of the respondents, for the respondents are possessed of enough properties. The theatre, Central Talkies, is a very big theatre with a seating capacity of 996 seats with cinema equipment and furniture. The first respondent in his counter has stated that he is constructing another theatre adjacent to his theatre and he has completed almost 3/4th of the work. He denied the suggestion that he is negotiating for sale of his properties to one Dr. Karunanidhi. Even assuming that the appellants succeed in the appeal, either partially or fully, it would not be difficult for them to realise the amount from the respondents who own a very valuable property which is now sought to be attached.

6. The caption in the Judge's summons shows that the petitioners have invoked the provisions of Order 21, Rule 42, C. P. C. also. Order 21, Rule 42, C., P. C. provides that where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money. In this case, an inquiry into mesne profits has been made. The learned single Judge has 'fixed' the mesne profits payable by the defendants to the plaintiffs at the rate of Rs. 6250 per month. The amount has been ascertained. The property of the respondents was sought to be sold in execution of this decree and the respondents have paid the entire amount due under the decree and full satisfaction of the decree had been recorded. Order 21, Rule 42, C. P. C. authorises attachment for mesne profits before the amount of such profits has been ascertained. The petitioners now want to attach the property for realisation of any amount that may be granted to them in appeal. In our view, to such proceedings, Order 21, Rule 42, C. P. C. is not applicable.

7. The only question that remains to be considered is whether S. 151, C. P. C. should be invoked. It is well settled that the inherent powers are to be exercised by the court in very exceptional circumstances for which the Code lays down no procedure. In this case, the prayer of the petitioners for attachment before judgment made earlier in C. M. P. 9096 of 1984 has been negatived. It was also found that it is not expedient in the interest of justice to attach the properties pending disposal of the appeal. As we have already negatived the claims of the petitioners for attachment on other grounds also, we do not see any reason to invoke the inherent powers of this court to attach the property. It should also be noted that the order of attachment could not be said to be an order necessary in the interest of justice or to prevent the abuse of the process of the court. We, therefore, decline to invoke the inherent powers of this court under S. 151, C. P. C.

8. For the foregoing reasons, the petition deserves to be and is hereby dismissed with costs.

9. Petition dismissed.


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