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Sivakolundu Pillai Vs. Ganapathi Iyyar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in34Ind.Cas.302
AppellantSivakolundu Pillai
RespondentGanapathi Iyyar
Cases ReferredSee Rhedoy Krishna Ghose v. Koylash Chunder Boss
Excerpt:
civil procedure code (act v of 1908), section 46 - attachment by precept--objection to execution based on omission to transfer decree, if can be taken at hearing of appeal--simultaneous execution in two courts against same property, if permissible--extension of time, petition for, presented before expiry of two months--order passed after expiry of that period--attachment, if ceases to be effective. - .....the privy council in saroda prosaud mullick v. luchmeeput sing doogur 14 m.i.a. 529 allowed only attachment of property in more than one court in execution of the same decree and that further execution proceedings consequential on attachment can take place only in one court at one and the same time. there is nothing in the derision of the privy council to prevent such further proceedings taking place in more than one court simultaneously, though, of course (as woodroffe and ameer ali pointed out in page 222 of their commentary on the code of civil procedure), such simultaneous further executions in more than one court would take place only very rarely. see also the judgment of mookerjee, j., in baijnath goenka v. f.h. holloway 1 c.l.j. 315.3. it is next contended that the order for.....
Judgment:

1. A contention is raised by the learned Vakil for the appellant that the decree was not transferred for execution to the Trichinopoly Sub-Judge and hence he had no jurisdiction to pass an order for the sale of the property which he had attached on the strength of a precept from the Court which passed the decree, namely, the Kumbakonam Sub-Court. This contention 'was not raised in the lower Court or in the memorandum of appeal to this Court, and we must presume that all necessary steps had been taken to invest the Trichinopoly Sub-Court with jurisdiction to sell the property, especially as we find a reference in the execution petition to an application of January 1915 made to the Kumbakonam Subordinate Court to transmit records to the Trichincpoly Subordinate Court.

2. It is further contended that simultaneous execution of the same decree cannot take place in two Courts and that the decision of the Privy Council in Saroda Prosaud Mullick v. Luchmeeput Sing Doogur 14 M.I.A. 529 allowed only attachment of property in more than one Court in execution of the same decree and that further execution proceedings consequential on attachment can take place only in one Court at one and the same time. There is nothing in the derision of the Privy Council to prevent such further proceedings taking place in more than one Court simultaneously, though, of course (as Woodroffe and Ameer Ali pointed out in page 222 of their Commentary on the Code of Civil Procedure), such simultaneous further executions in more than one Court would take place only very rarely. See also the judgment of Mookerjee, J., in Baijnath Goenka v. F.H. Holloway 1 C.L.J. 315.

3. It is next contended that the order for sale is illegal as the attachment by precept had come to an end at the expiry of two months from when it was made in December 1918 (see proviso to Section 46 of the Code of Civil Procedure) and that, though a petition for extension was tiled before the expiry of the two months and an order was passed extending the period of attachment for six months (which period was again extended before the expiry of that period of six months by another six months), that order is illegal and cannot have the effect of continuing the attachment which had come to an end. We think that there is nothing in this contention The deley of the Court in passing orders on the petition for extension cannot be allowed to prejudice the petitioner and the order granting extension must be given retrospective effect as if passed on the date of the petition. [See Rhedoy Krishna Ghose v. Koylash Chunder Boss 13 W.R. 3

4. We, therefore, dismiss the appeal with costs.


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