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(Gadiraju) Venkatappayya and anr. Vs. Kasarabada Venkatachalapathi Rao - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1927Mad450
Appellant(Gadiraju) Venkatappayya and anr.
RespondentKasarabada Venkatachalapathi Rao
Cases Referred and Jalaluddin v. Maniran
Excerpt:
- - the 2nd defendant appealed against the decree and an order for staying execution was passed by the appellate court on 13th march 1914. the stay order was received by the district munsif's court on 16th march 1914, and the attachment was completed on 23rd march 1914. as the 2nd defendant failed to furnish security as directed by the appellate court, the stay order was not made absolute but was vacated on 15th april 1914. the 2nd defendant sold the plaint property to the plaintiff on 27th may 1914, and applied to have the attachment raised on 6th october 1914. the high court finally restored the attachment on 18th december 1917. the plaintiff applied on 26th august 1919, under order 21, rule 58 to have the attachment raised or in the alternative to be allowed to be subrogated to the..........is that there is no valid attachment on the property and, therefore, it cannot be brought to sale in execution of the decree of the 1st defendant. a few facts are necessary to understand the contentions between the parties. the 1st defendant obtained a money-decree in o. s. no. 38 of 1912 in the munsif's court against the 2nd defendant, and applied for execution of the decree on 12th march 1914, and an order was passed for attaching the 2nd defendant's property. the 2nd defendant appealed against the decree and an order for staying execution was passed by the appellate court on 13th march 1914. the stay order was received by the district munsif's court on 16th march 1914, and the attachment was completed on 23rd march 1914. as the 2nd defendant failed to furnish security as.....
Judgment:

Devadoss, J.

1. The plaintiffs' suit is for a declaration that the plaint property belongs to them and is not liable to attachment in execution of the decree obtained by the 1st defendant against the 2nd defendant. Both the Courts have dismissed the plaintiffs' suit. The plaintiffs have preferred this second appeal.

2. The first point raised by Mr. Somasundaram for the appellants is that there is no valid attachment on the property and, therefore, it cannot be brought to sale in execution of the decree of the 1st defendant. A few facts are necessary to understand the contentions between the parties. The 1st defendant obtained a money-decree in O. S. No. 38 of 1912 in the Munsif's Court against the 2nd defendant, and applied for execution of the decree on 12th March 1914, and an order was passed for attaching the 2nd defendant's property. The 2nd defendant appealed against the decree and an order for staying execution was passed by the appellate Court on 13th March 1914. The stay order was received by the District Munsif's Court on 16th March 1914, and the attachment was completed on 23rd March 1914. As the 2nd defendant failed to furnish security as directed by the appellate Court, the stay order was not made absolute but was vacated on 15th April 1914. The 2nd defendant sold the plaint property to the plaintiff on 27th May 1914, and applied to have the attachment raised on 6th October 1914. The High Court finally restored the attachment on 18th December 1917. The plaintiff applied on 26th August 1919, under Order 21, Rule 58 to have the attachment raised or in the alternative to be allowed to be subrogated to the 1st defendant. The claim petition was dismissed on 31st October 1919, and hence the suit. The question is: Is the attachment effected by the District Munsif's Court after the receipt of the order staying execution valid or not? It is clear from the evidence that the stay order was received by the District Munsif on the 16th March 1914. The actual attachment proceedings began only on 17th March 1914, and completed on 23rd March 1914. The real question is, What is the effect of the order of the appellate Court staying execution by the executing Court?

3. It is contended on behalf of the respondent by Mr. G. Lakshmanna, that inasmuch as the stay order was vacated owing to the default of the 2nd defendant to furnish security it must be considered that the attachment proceedings are valid. When an appellate Court orders the stay of execution pending an appeal, the Court before which the execution proceedings are pending has no power to proceed with the execution after the receipt of the order. It would be opposed to all principle to hold that because the stay order was not perused by the Court executing the decree or that it had no time to pay any attention to it the attachment and other proceedings subsequent to the receipt of the. order are good. The fact that the stay was not made absolute does not affect the question. When an appellate Court pending an appeal orders the stay of an execution that order is good till it is vacated and nothing done in contravention of the order can become good by reason of the order being ultimately vacated. To hold that the dismissal of the execution petition at a later stage would give validity to proceedings which in their inception were iilegal would be opposed to all principle and to all authority. When a proceeding or execution is directed to be stayed by the Appellate Court or the Revisional Court anything done during the trial when the stay order is in force is not only irregular but is altogether void, as the Court has no jurisdiction to do anything after it is prohibited from doing it.

4. Mr. Lakshmanna contends that it is only an irregularity to carry on execution proceedings after the Court has been directed not to proceed with them by an order of the appellate Court. It is not as I said an irregular exercise of jurisdiction to ignore the order of the appellate Court or to act in contravention of it. The Court ceases to have any jurisdiction to do anything when it is directed not to do a thing by the appellate Court. To hold that the proceedings after the stay order are irregular would lead to monstrous results. Supposing the Munsif's Courts or the Sub-Court, notwithstanding the stay order by the High Court does something which would be irrevocable, could the act of the Munsif's Court or the Sub-Court be considered to be merely an irregularity? It would be subversive of all principles to hold that an act done by a Subordinate Court in contravention of the direct order of the appellate Court is valid though irregular.

5. The attachment proceedings were completed on the 23rd March 1914, that is seven days after the receipt of the order. It is suggested for the respondent that the letters were received only in the evening and the Court had no time to countermand the order for attachment. The order was received on the 16th as is clear from the record. The attachment by affixture was effected on the 17th. I hold that it is not necessary that there should be time to communicate with the ministerial officers in order to give effect to the order of the appellate Court staying proceedings. The attachment cannot be said to be complete till all the formalities have been gone through. In Sinnappan v. Arunachalam Pillai [1919] 42 Mad. 844 it was held that it is not the mere passing of the order by a Court that constitutes attachment, but it is the actual attachment in the manner provided for by the Court that could constitute attachment.

6. It is contended on the strength of Venkatachelapatirao v. Kameswaramma [1918] 41 Mad. 151 that the attachment was held to be good and, therefore, the appellants cannot contend that the attachment is invalid. A Full Bench of this Court held in Venkatachelapatirao v. Kameswaramma [1918] 41 Mad. 151 that an order of the appellate Court staying execution becomes effective only on communciation. Till it is communicated the steps taken in execution by the lower Court must be taken to be legal and valid. To that case the 2nd defendant and the 1st were parties. Mr. Lakshmanna relies upon this case as concluding the point now raised. It was not decided in that case that proceedings subsequent to communciation were good. The contention in that case was that the moment the stay order was passed by the appellate Court it took effect. The learned Judges held that the order of the appellate Court became effective only on communciation to the lower Court. Until it was communciated proceedings taken by the lower Court could not be held to be invalid. But here, in this case, it is admitted that the order was received on the 16h March 1914, and the execution proceedings were commenced only on the 17th. The decision in Venkatachelapatirao v. Kameswaramma [1918] 41 Mad. 151 cannot affect the present plaintiff-appellant who was no party to that decision.

7. The next question is whether the appellant is bound by the decision in Venkatachelapatirao v. Kameswaramma [1918] 41 Mad. 151 by reason of his being the representative of the judgment-debtor. If the sale to the appellant was subsequent to the date of attachment no doubt he would be a representative of the judgmentdebtor and he would be bound by an order made against the judgment-debtor. But where the sale is effected before the attachment is actually made, the vendee does not become the representative of the judgment-debtor and is not bound by any proceedings against the judgment-debtor subsequent to the date of sale. It is difficult to understand how the man who claims title before the property is attached can, in any way, be bound by an attachment subsequent to the sale, for the vendor parts with the property under the sale and what is attached is only the right, title and interest of the judgment-debtor, and when he has no interest to be attached the mere fact that attachment is made on the property would not, in any way, bind one who acquired a title before attachment. In Mussan Haji v. Thiyan Thavara Koran : (1921)41MLJ392 it was held that a lessee under a lease granted before the suit brought by or against his lessor is not bound the decision therein against the latter if the lessee was not himself a party to the suit. It is unnecessary to discuss this point any further as a person cannot be bound by a proceeding against another person when he is not a party to it and when the title he got from that was before the proceeding commenced.

8. It is next suggested for the respondent that the appellants ought to have applied to be made parties to the execution proceedings and not having done so they are not entitled to come in now and ask for a declaration that the attachment proceedings are void. It is doubtful whether a person who gets a title to property before attachment could ask the Court to make him a party to the execution proceedings. In Raghunath Das v. Sundar Das Khetri [1914] 42 Cal. 72 their Lordships of the Privy Council observe:

It was suggested in argument that he might have been made a party to the proceedings either under Section 32 or under Section 372 of the Code, but even if these sections are applicable after final decree, as to which there is considerable doubt; [see Good all v. Mussoorie Bank, Ltd. [1887] 10 All. 97. no proceedings seem to have been taken thereunder.

9. When a person is not bound to take notice of any proceedings and ask the Court to make him a party it cannot be said that the result of any proceeding to which he is not a party would bind him.

10. The attachment proceedings after the 17th were absolutely void. In other words there was no attachment at all though the formality of an attachment was gone through as the hands of the Court had been tied by the order of the appellate Court and anything done after that would not be attachment indeed. In that view the appellant cannot be said to be a representative of the 2nd defendant, and if he is not a representative of the 2nd defendant then the argument that no separate suit lies and that Section 47 would apply to the case must fail. It is only vendees or persons who acquire title to the property after it is attached that can be said to be representatives of the judgment-debtor,: vide Rashbehary Mookhopadhya v. Maharani Surnomoyee [1881] 7 Cal. 403 and Ishan Chunder Sirkar v. Beni Madhub Sirkar [1897] 24 Cal. 62 Mr. Justice Banerjee who delivered the judgment of the Full Bench in Ishan Chunder Sirkar v. Beni Madhub Sirkar [1897] 24 Cal. 62 observes at page 71 (of 24 Cal.)

One thing, however, is clear, even if the word has either of the two comprehensive meanings and includes a purchaser of the interest of the judgment-debtor, such a purchaser must be one who is affected by the decree but a purchaser of the interest of a party to a suit who is not affected by the decree cannot in any sense be regraded as a representative of that party within the meaning of Section 244,

11. I hold that Section 47, Civil P. C., is no bar to the plaintiff's suit.

12. It is next contended by Mr. Lakshmanna that the principle of constructive res judicata applies to this case and inasmuch as the appellant was aware of the proceedings taken by the 2nd defendant to have the attachment raised and helped him to carry on litigation to the High Court, he must be held bound by the result of the litigation carried on by the 2nd defendant for his benefit. He reliee on Shyama Charan Batsya v. Prafalla Sundari [1915] 21 C. L. J. 557 and In re Lart, Wilkinson v. Blades [1896] 2 Ch. 788 in support of his contention. In probate proceedings the parties interested in the result of the proceedings stand by and do not intervene; they are held bound by the proceedings in which they could have intervened but abstained from doing so. This principle applies to proceedings for construction of Wills, etc. It is the duty of persons who are interested in impeaching a Will or in the construction of any clause of a Will or any other proceedings in the Probate Court who stand by and get the benefit of any order which the Court makes, cannot afterwards come in and ask for something which they could have done when the former proceedings were going on. The principle of construction res judicata could not be extended to a case like the present. Section 11, Civil P. C., lays down in what cases a person is bound by a decision in a former suit and it would not be right on the part of a Court to extend that section to cases which cannot be brought within the four corners of it. Their Lordships of the privy Council observed in Gokul Mandar V. Padmanund Singh [1902] 29 Cal. 707:

They will further observe that the essence of a Code is to be exhaustive on the matters in respect of which it declares the and it is not the province of a Judge to disregard or go outside the letter of the enactment according to its true construction.

13. I hold that the appellant is not bound by the decision in C. M. S. A. No. 128 of 1916.

14. It is next urged by Mr. Lakshmanna that a person who puts in a claim petition under Order 21, Rule 58 cannot question the validity of the attachment; he can only set up his right to the property under attachment and ask that the attachment be raised as the property belongs to him and not to the judgment-debtor and that Order 21, Rule 58 and the rules following do not provide for a challenge of the validity of the attachment by a claimant under Rule 58 and, therefore, the appellant is not entitled to question the validity of the attachment. I am unable to appreciate this Contention. When a person applies under Rule 58, no doubt, he asks upon his title to the property and when his application is dismissed it is difficult to see why he could not challenge the validity of the attachment itself when he asks for a declaration that his property is not liable to attachment. There is no question of estoppel in this case and there is no authority for the position that a person who files a claim petition could not contend that the Court which effected the attachment had no jurisdiction to effect it. And whatever may be said as to his contention in the execution proceedings, it cannot be a defence to a regular suit after disposal of the claim petition.

15. Supposing a Court in the mofussil which has no jurisdiction to attach property in Madras attaches some property in Madras, it is open to the owner of property to ignore the attachment, but if he wants to remove cloud on his title or any inconvenience caused by the attachment ho can apply to that Court and urge that the property belongs to him and not to the judgment-debtor and that the Court had no jurisdiction to attach property in Madras. The only case brought to my notice by Mr. Somasundaram on the point is in Sasirama Kumari v. Meherban Khan [1911] 13 C. L. J. 243. The facts were shortly these. An attachment before judgment was effected. The suit was subsequently dismissed. On appeal a decree was passed in favour of the plaintiff. The plaintiff brought the property to sale relying upon the attachment before judgment. A claim petition was put in and the sale of the property was objected to on the ground that the attachment had terminated with the dismissal of the suit; and that as it was not revived when the decree of dismissal was reversed by the appellate Court no sale could be held without a fresh attachment. Mr. Justice Mukerjee who delivered the judgment of the Court observed at page 249 (of 13 C. L. J.)

It has been argued, however, by the learned vakil for the decree-holders, that the petitioner has no locus standi in this matter, because if, according to her case, there is no subsisting attachment, it is incompetent to her to prefer a claim under Rule 58 of Order 21, of the Code of 1908. This objection is manifestly fallacious, for even if it be conceded for a moment that Rule 58 presupposes an attachment to which objection is made, it is clear that a Court is not competent to sell a property which has not been previously attached. Consequently, if act is invited by a, decree-holder to sell property which has not, as a matter of fact, been duly attached, and the Court is appraised of this circumstance by a person claiming to be interested therein, the Court has inherent power to investigate the matter; indeed it is its duty to guard against possible abuse of its process.

16. It may be said that when a sale of immovable property has really taken place and its validity is impeached on the ground that it was not attached the absence of attachment does not by itself vitiate the sale; after quoting several authorities the learned Judge goes on to say:

But the position is entirely different when objection is taken to the legality of the proceedings before the sale has taken place. The position cannot be maintained on any intelligible ground, that though the Court is appraised, before the sale of the circumstance that no writ of attachment has been served, it should, nevertheless, proceed to sell the property and leave the parties to litigate about the legality of the sale at a subsequent stage of the proceedings.

17. Mr. Lakshmanna relied upon Subbayya v. Sankara Venkataratnam [1917] M. W. N. 851 and Jalaluddin v. Maniran [1921] 2 PL. T. 275 in support of his contention that the validity of the attachment cannot be raised by the appellant now. These cases do not help him. When there is no attachment on a man's property he need not file a claim petition to have the attachment, which does not exist, raised. But there are attachment proceedings which are void or which are illegal; the claimant need not restrict himself to prove only his claim but can also attack the validity of the attachment proceedings, and when he filed a suit under Order 21, Rule 63 he is certainly in no way debarred by anything contained in the Civil P. C. from contesting the validity of attachment. In other words, when asking for a declaration that his property is not liable to attachment, he can also show that either what was done was not attacment or that there was an invalid attachment which could not affect his right in any way. This contention of the respondent, therefore, fails. In the result, the appeal is allowed and the decrees of the lower Courts are set aside and the plaintiff will have a decree as prayed for with costs throughout.


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