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Manika Goundan and anr. Vs. Loganatha Mudaliar by Agent A.P. Varadaraja Mudaliar and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in125Ind.Cas.90
AppellantManika Goundan and anr.
RespondentLoganatha Mudaliar by Agent A.P. Varadaraja Mudaliar and anr.
Cases ReferredSubbiah Naicker v. Ramanathan Chettiar
Excerpt:
civil procedure code (act v of 1908), sections 64, 150, order xxi, rule 64 - change of territorial jurisdiction in respect of attached properties--attachment, whether ceases--order for sale by court other than court ordering attachment, whether valid--section 150, applicability of, to case of transfer of territorial jurisdiction. - .....contends that under order xxi, rule 64, civil procedure code, no court is competent to order the sale of property which has not been attached by itself. he particularly relies upon the fact that the present section is differently worded from section 284 of the code of 1882 to which it corresponds. the old section ran thus:any court may order that any property which has been attached * * * * * shall be sold.whereas the present section enacts:any court executing a decree may order that any property attached by it and liable to sale * * * * * shall be sold.6. from this he contends that it is the intention of the present code to lay down that no property shall be sold by a court unless it has itself attached that property. i am not prepared to accept this contention. the scheme of the.....
Judgment:

Venkatasubba Rao, J.

1. The point to be decided in this appeal is, 'Is the order of the lower Court directing sale a valid order?

2. The question arises in execution. The decree in the suit was for money passed by the High Court of Madras on its original side. lb was transferred for execution to the Subordinate Judge's Court at Vellore. Certain 17 items of property were attached by that Court which caused two of them to be Bold. The decree was partly satisfied but further execution in that Court became impossible, it having lost territorial jurisdiction over the other items attached. They were with the exception of one item removed by a Government notification, from the limits of Vellore Sub-Court to the local jurisdiction of the Sub-Court of Chittoor. The decree-holder thereupon applied to the former Court for re-transmission of the decree to the High Court of Madras. That request was complied with and the High Court in its turn sent the decree for execution to the Chittoor Sub-Court. The properties being already under attachment, the decree-holder applied to that Court for their sale. It granted his request and the question, as I have said, is, 'Is the order of the Chittoor Court directing the sale valid?'

3. Mr. Ramaswami Aiyanger who appears for the appellant has argued the case very fully. He first contends that when the Vellore Court lost jurisdiction over the items in question the attachment ipso facto came to an end. If there was no subsisting attachment, there could, of course, be no sale. But how can the fact that the Court loses jurisdiction lead to the result that the attachment itself falls to the ground? Does a decree in a suit become void when the Court which passed it ceases subsequently to have jurisdiction for the subject-matter of the suit? The Civil Procedure Code contains detailed provisions as to when an attachment validly effected ceases to be in force. There seems to be no warrant for adding to that list, by holding that when the Court loses jurisdiction, the attachment subsisting until then suddenly comes to an end.

4. It further seems to me that this view alone is consistent with the ratio decidendi in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63. The point decided in that case, is that although a Court loses its territorial jurisdiction, it does not cease to be a 'Proper Court' to entertain an execution application. Ex hypothesi the application to that Court is made after it has lost its jurisdiction. It is nevertheless competent according to this ruling to make an order on that application. Is it to be assumed that even at the moment when it is competent to make a valid order, the attachment has ceased to remain in force? The fact that its jurisdiction is removed does not affect its competency to deal with the execution application. Why then should it be assumed that the Court is not likewise competent to keep its own attachment in full force up to that moment? The facts of this very case are sufficient to show that serious consequences may follow if a contrary view is taken. Subsequent to the date of the notification, the judgment-debtor, it is said, alienated some of the items attached. If the attachment was not then in force, the alienations might prevail against the plaintiff's rights. This explains why the appellant has put forward the contention in question. It is notorious that the law of this country accords its sanction to obstacles, numerous and varied, designed to prevent judgment creditors from realising the fruits of their decrees. It is not necessary to add to their confusion by holding that they are deprived, for no fault of theirs, of the benefits accruing from attachments effected at their instance and on their behalf? There is thus no provision of law which compels us to hold that the attachment has come to an end.

5. Mr. Ramaswami Ayyangar next contends that under Order XXI, Rule 64, Civil Procedure Code, no Court is competent to order the sale of property which has not been attached by itself. He particularly relies upon the fact that the present section is differently worded from Section 284 of the Code of 1882 to which it corresponds. The old section ran thus:

Any Court may order that any property which has been attached * * * * * shall be sold.

whereas the present section enacts:

Any Court executing a decree may order that any property attached by it and liable to sale * * * * * shall be sold.

6. From this he contends that it is the intention of the present Code to lay down that no property shall be sold by a Court unless it has itself attached that property. I am not prepared to accept this contention. The scheme of the section shows that its purpose is to provide for the sale of the attached property. Its object is to declare what shall happen to the property that has been attached and the section gives to the Court power to order its sale. The provision does not purport to be exhaustive of the cases where the enacting Court is competent to sell property. If the appellant's contention is correct, it must follow that a Court executing a decree must in every case derive its power to sell property from the terms of this section. Bat this is obviously not the case. The power to sell on the part of an executing Court is assumed to exist apart from and independent of this rule, la the case of a mortgage-decree, the executing Court when it sells the mortgaged property, is surely not acting under this section. Similarly, in the case of a decree directing sale of property (as under the Partition Act or in a partition suit), the executing Court in causing it to be sold does not derive its power from this rule. This section, therefore, in my opinion, does not forbid the sale by a Court of properly under a subsisting attachment, although it was a different Court that attached it. I am not prepared to hold that when the Legislature recast the section in 1908, it intended to bring about the result contended for by the appellant. There was neither doubt nor conflict of opinion previously on the point and we cannot easily assume that a deliberate departure was intended. If the Legislature wanted to say that only the Court attaching the property has the power to sell it (departing from the previous law on the point) much clearer and more definite language would have been used, such as, 'No Court] shall have power to sell property not attached by itself'. In the absence of such words, I am not prepared to hold that the law on this point previous to 1908 has been abrogated by this rule, The result is, that I reject both the contentions raised for the appellant.

7. The lower Court seeks to support its order by relying upon the Pull Bench decision in Seeni Nadan v. Muthusami Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63. In that case, it was held that a Court can entertain an execution application although it ceases to possess territorial jurisdiction. The question arose whether the view of the law taken by Ayling and Sadasiva Ayyar, JJ., in an earlier decision Subbiah Ndicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251, was correct or not. The effect of that decision is this. Where property is transfer red to the local jurisdiction of another Court, that Court alone is competent to entertain the application. The Full Bench expressed dissent from this view and held that the first Court also had jurisdiction. It is important to bear in mind that while they decided that the first Court retained its jurisdiction, they affirmed that part of Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251, which laid down that the second Court possessed competency. There is no ambiguity in the language employed. Sir John Wallis, C.J, observes at page 832 page of 42 M.-[Ed.] thus:

The case of direct application to the Court to which the area had been transferred was met by the enactment of the new Section 150 which was in terms wide enough to authorise that Court to entertain the first instance any application which might have been made to the Court which passed the decree.

8. Ayling J., expresses himself to the same effect, at page 835 Page of 42 M.-[Ed.].

After careful re-consideration in the light of the arguments now adduced before us, I am include to think that, is our judgment in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251, we went too far is saying that the Court which passed the decree for sale of is property could not even entertain an application for sale of such properties, once they had been transferred out of its territorial jurisdiction. This decision was not necessary for the disposal of the case before us where the question was whether such an application could be properly made to the Court to whose jurisdiction the property had been transferred. I think it could, if only by reason of Section 150 Code of Civil Procedure.

9. The lower Court argues thus. Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63, approves of the earlier case, in so far as it holds that when there is change of territorial jurisdiction, Section 150 applies in the sense, that the business of the first Court is transfered to the second. On the strength of this, it proceeds to argue that the new Court becomes seized of the execution petition and may proceed with it, from the point at which the old Court left it. If these steps in the argument are correct, it necessarily follows that the attachment subsists and that the second Court is clearly competent (whatever be the construction of Order XXI, Rule 64) to sell the property. There has been some conflict of judicial opinion as regards what is meant by the transfer of business referred to in Rule 150 In Subbiah Naiker v. Ramnalhan Chetiiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251, Srinivasi Rao v. Hanumantha Rao 65 Ind. Cas. 727 46 M. 1 : 42 M.L.J. 344 : 15 L.W. 458 : A.I.R. 1922 Mad. 10 : (1922) M.W.N. 349 : 31 M.L.T. 79 and Muthukaruppa Chetly v. Panja Kavundan 73 Ind. Cas. 956 : 45 M.L.J. 210 : (1923) M.W.N. 406 : 18 W.R. 17 : A.I.R. 1924 Mad. 32, the view was acted upon that when property was transferred from the local limits of one Court to another, the case fell within Section 150, there being a transfer of business within the meaning of that section. This view has recently been dissented from in Subramanya Iyer v. Swaminatha Chettiar : AIR1928Mad746 , on the ground that Section 150 refers to cases where certain specified business has been transferred and not where there has been a change of venue resulting from territorial re-distribution, I do not propose to discuss the merits of these two contacting veiws, for I have held on other grounds that the appellant's contentions fail. The appeal is, therefore, dismissed with costs.

Madavan Nair, J.,

10. The question of law for decision in this case is whether the Chittoor Court to which the territorial jurisdiction over the properties attached by the Vellore Court was transferee, has power to sell the properties without issuing a fresh order of attachment, The point has not been in this form directly dealt with by any decision: but sufficient support for the conclusion of the learned Subordinate Judge that the Chittoor Court has jurisdiction to sell the properties without again attaching them can be found in the decision in Subbiah Naickar v. Ramanathan Chetiiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251 and in the provisions of Section 150, Civil Procedure Code.

11. In Subbiah Naicker v. Ramanathan Chattiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251, it was held that 'where attachment of property in execution of a decree for money and an order for sale made by the Court which passed the decree, the property was transferred to the local limits of the jurisdiction of another Court newly established, the Court which passed the decree ceased to have jurisdiction to continue the execution proceedings and that the new Court having territorial jurisdiction over the property attached, was the proper Court to entertain an application for execution, by sale of the property, and pass orders thereon.' Applying the principle of to is decision it would follow that in the present case the Chittoor Court can sell the properties without attaching them afresh as it is the proper Court having regard to the transfer to it of the territorial jurisdiction over the attached properties, to entertain the application for execution by sale. But it is argued by the learned Advocate for the appellant that the decision in Subbiah Naicker v. Ramanathan Chetiiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251, has been completely overruled by the Full Bench decision in Seeni Nadan v. Muthuswami Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63. I cannot agree with this view. So far as the principle sought to be applied to the present case is concerned, I think Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251, is still good law. What was held by the Full Bench case in Seeni Nadan v. Muthuswamy Pillai, 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63 is that the Court which passed the decree is a proper Court for execution within the meaning of Clause 5 of Article 182 of the Limitation Act notwithstanding the fact that the jurisdiction which it had at the time of the decree was taken away from it and assigned to another Court at the time of the presentation of the application for execution. The decision, in Subbiah Naicker v. Ramanathan Chatiair 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251, lays down two propositions, namely, (1) that when the property attached by the Court which passed the decree was transferred to the territorial jurisdiction of another Court, the Court which passed the decree ceased to have jurisdiction to continue execution and (2) the new Court was the proper Court to entertain an application for sale and pass orders thereon. So far as the first proposition is concerned it is true that the decision in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63, has overruled the decision in Subbiah Naicker v. Ramanathan Ghatti 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251. The second proposition that the new Court to which territorial jurisdiction has been transferred can proceed to execute the decree by passing orders for sale has not been touched by the Pull Bench decision in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63. This appears to be clear from the judgments of Ay ling, J, and Sadasiva, J, The observations of Ayling, J. makes the position very clear. He says:

I am inclined to think that in our judgment in. Subbiah Naicker v. Ramanathan Cheltiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251, we went too far in saying that the Court which passed the decree for sale-of a property could not entertain an application for sale of such properties, once they had been transferred out of its territorial jurisdiction. This decision was not necessary for the disposal of the case before us where the question was whether such an application would be properly made to the Court to whose jurisdiction the property had been transferred.

12. That this is the true scope of the Full Bench decision may be seen also from the judgment of Wallace, J. (concurred in by Jackson, J.) in Setrucherla Sivaskanda v. Rajah of Jeypore 103 Ind. Cas. 245 : 50 M. 882 : (1927) M.W.N. 282 : 25 L.W. 671 : 52 M.L.J. 605 : 38 M.L.T. 351 : A.I.R. 1927 Mad. 627. if in spite of the removal of the territorial jurisdiction of the Court which passed the decree, that Court has still power to entertain an execution application, I think it may well be held that the attachment over the properties effected by that Court would also subsist notwithstanding the removal of the territorial jurisdiction. The argument that when the attached properties are transferred from the jurisdiction of the Court which passed the decree to the jurisdiction of another Court, the attachment ceases to exist ipso facto, must be rejected. As a result of the decisions referred to above, it would follow that the attachment effected by the Vellore Court still subsists and that the order of the Chittoor Court directing sale of the properties in this case without afresh attachment is a valid and proper order.

13. In support of his argument that a Court in execution of a decree has. no power to sell property which it has not itself attached the appellant relies mainly on Order XXI, Rule 64, Civil Procedure Code, which says that any Court executings decree may order that any property attached by it and liable to sale, or such portion thereof as may them necessary to satisfy the decree, shall be Sold,...' It may be noticed that this rule does not specifically say that the Court executing a decree has no power to sell properties not attached by it. According to Section 284 of the old Code 'any Court may order that any property which has been attached...shall be sold...I do not think that the Legislature when it substituted Order XXI, Rule 64 in the new Code in the place of this section intended to lay down any new Rule. The provisions of Order XXI, Rule 64 reasonably construed do not in my view support the appellants' contention.

14. The argument that the Chittoor Court in this case has no jurisdiction to sell the properties overlooks the provisions of Section 150, Civil Procedure Code which states that 'save as otherwise provided, where the business of any Court is transferred to any other Court, the Court to which the business is transferred shall have the same powers and shall perform the same duties as those respectively conferred and imposed by or under this Code upon the Court from which the business was so transferred.' If it can be said that when the territorial jurisdiction over some of the properties subject to its jurisdiction, has been transferred from one Court to another that the business of that Court is to that extent transfered to the new Court, then it is clear that by force of this section the Chittoor Court in this case as the Court to which the business has been transferred has power to sell the properties in question without issuing a fresh order of attachment. The view that the section can be so understood finds support in the observation of Ayling, J., in Seeni Nadan v. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63, the case already cited, where the learned judge says, 'this section (Section 150, Civil Procedure Code) certainly seems to cover the case of the transfer of all the litigation arising out of a tract of country from one Court to another.'

15. After pointing out the true scope of the decision in Subbiah Naicker v. Ramanathan Cheltiar 22 Ind. Cas. 899 : 37 M. 462 : 26 M.L.T. 189 : (1914) M.W.N. 205 : 1 L.W. 251, the learned Judge points out that the decision in that case, as explained by him, could be supported by Section 150 of the Code of Civil Procedure. In the same case Wallis, J., also makes similar observations:

The case of direct application to the Court to which the area had been transferred was met by the enactmant of the new Section 150 which was in terms wide enough to authorise that Court to entertain in the first instance any application which might have been made to the Court which passed the decree.

16. It has been held in this Court that the word 'transfer' in Section 150 is not confined to cases of transfer of business of one Court to another but includes also cases where a new Court is given part of the territorial jurisdiction of an old Court and is empowered to try all the business arising within it [see Srinivasa Rao v. Hanumantha Rao 65 Ind. Cas. 727 : 46 M. 1 : 42 M.L.J. 344 : 15 L.W. 485 : A.I.R. 1922 Mad. 10 : (1922) M.W.N. 349 : 31 M.L.T. 79, and Mouna Guruswamay Naicker v. Muhammidhu Rowther 86 Ind. Cas. 650 : 46 M. 83 : 16 L.W. 748 : (1922) M.W.N. 743 : 43 M.L.J. 713 : A.I.R. 1923 Mad. 92, This view has been very recently dissented from in Subramanya lyir v. Swaminatha Chettiar : AIR1928Mad746 , but for deciding this case it is not necessary to con-eider which of the conflicting views on this point is the correct one, as I am prepared to uphold the lower Court's order, having regard, as already pointed out, to the principles of the decisions in Subbiah Naicker v. Ramanathan Chettiar 22 Ind. Cad. 899 : 37 M. 462 : 26 M.L.J. 189 : (1914) M.W.N. 205 : 1 L.W. 251 and Seeni Nadan V. Muthuswamy Pillai 53 Ind. Cas. 213 : 42 M. 821 : 37 M.L.J. 284 : 26 M.L.T. 223 : (1919) M.W.N. 640 : 11 L.W. 63.

17. It seems to me that on general considerations also the above view of the law taken by the lower Court should be upheld. If we do not hold that the attachment still subsists in cases like the present, it will be open to the judgment debtor to alienate the attached properties to the detriment of the decree-holder after the transfer of the territorial jurisdiction to the new Court and before application for execution is made to it.

18. For all these reasons, I hold that the lower Court's order is right and dismiss this appeal with costs.

19. The Civil Miscellaneous Petition is dismissed. No costs.


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