Skip to content


Ganu Singh Vs. Jangi Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1899)ILR26Cal531
AppellantGanu Singh
RespondentJangi Lal and ors.
Cases ReferredRaj Chunder Roy v. Isser Chunder Roy
Excerpt:
attachment - attachment before judgment, effect of--alienation during attachment--civil procedure code (act xiv of 1882), sections 483 484, 48s, 486, 487, 488, 489, 490, 276. - .....property in execution of a decree for money. section 487 says: 'if any claim be preferred to the property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for money.' then we have section 488, in which it is laid down that, 'when an order of attachment before judgment is passed, the court which passed the order shall remove the attachment whenever the defendant furnishes the security required together with security for the costs of the attachment, or when the suit is dismissed,' clearly indicating that in the event of the suit not being dismissed but decreed, the attachment shall subsist. section 489 then provides that 'attachment before judgment shall not affect.....
Judgment:

Ghose and Stevens, JJ.

1. This appeal arises out of a suit in which the plaintiff, who is the appellant before us, asked for a declaration of his title in respect to a 4 gundas odd share in a certain property as acquired by him under a bill of sale executed by the defendant, second party, Harihar Singh, on the 9th June 1894. The respondents before us, Babu Jangi Lal and others, who are the creditors of Harihar Singh, on the institution of a suit against that individual for recovery of a certain amount of money, obtained an attachment before judgment of the 4 gundas and odd share of the property.

2. The Courts below have dismissed the suit upon the ground that the sale of the plaintiff on the 9th June 1894, while the attachment before judgment was subsisting, was bad in law, and that therefore the plaintiff is not entitled to judgment.

3. It has, however, been argued before us by the learned Vakil on behalf of the plaintiff that the Courts below, before giving effect to the attachment before judgment, ought to have determined whether that attachment had been made in accordance with the provisions of the Civil Procedure Code. It has also been argued that attachment did not prevent the judgment-debtor Harihar Singh from alienating his property to the plaintiff.

4. As regards the first point raised before us, it seems to be quite clear, looking at the judgments of both the Courts below, that there really was no dispute between the parties, that there was an attachment, and that the attachment was duly made. That being so, we are of opinion that we should, not interfere with the judgments of the Courts below upon this ground.

5. As to the other question, namely what may be the effect of the attachment before judgment, it seems to us, upon a consideration of Sections 483 to (sic) of the Code of Civil Procedure, read with the sections which deal with reversing judgments after judgment, in course of the execution of a decree, that titled the 28th an attachment, whether it be before or after decree, is the same, provided that in the former case a decree is made for the plaintiff, at whose instance the attachment takes place. It will be observed that the main object of an attachment before judgment is to enable the plaintiff to realize the amount of the decree, supposing a decree is eventually made, from the defendant's property. Section 483 provides that 'if at any stage of any suit the plaintiff satisfies the Court by affidavit or otherwise that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property,' and so on, 'the plaintiff may apply to the Court to call upon the defendant to furnish security to satisfy any decree that may be passed against him, and, on his failing, to give such security, to direct that any portion of his property within the jurisdiction the Court shall be attached until further order of the Court.' Section 484 empowers the Court to call upon the defendant, either to furnish security to produce and place at the disposal of the Court when required, the property sought to be attached, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. Section 485 lays down that in the event of the defendant failing to show causa or to furnish the required security, 'the Court may order that the property specified in the application, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, shall be attached. Section 486 provides that' the attachment shall be made in the manner herein provided for the attachment of property in execution of a decree for money. Section 487 says: 'If any claim be preferred to the property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for money.' Then we have Section 488, in which it is laid down that, 'when an order of attachment before judgment is passed, the Court which passed the order shall remove the attachment whenever the defendant furnishes the security required together with security for the costs of the attachment, or when the suit is dismissed,' clearly indicating that in the event of the suit not being dismissed but decreed, the attachment shall subsist. Section 489 then provides that 'attachment before judgment shall not affect the rights, existing prior to the attachment, of persons not parties to the suit, nor bar any person holding a decree against the defendant from applying for the sale of the property under attachment in execution of such decree.' It would seem that, save and except in these two classes of cases, the intention of the Legislature is that an attachment before judgment should be fully operative. Then we have Section 490 providing that 'when property is under attachment by virtue of the provisions of this chapter, and a decree is given in favour of the plaintiff, it shall not be necessary to re-attach the property in execution of such decree.'

6. This section confirms the view which we have just expressed. No doubt, as has been pointed out by the learned Vakil for the appellant, there is no distinct provision in Chapter XXXIV of the Code, which deals with arrest and attachment before judgment, similar to that which is to be found in Section 276 of the Code, viz., that when an attachment is made in execution of a decree, alienation of the property so attached during the continuation of the attachment shall be void as against all claims enforceable under the attachment. But looking at the various sections to which we have just referred as whole, there can be very little or no doubt that the Legislature intended that, Esq., District effect should be given to an attachment before judgment as is expressly (sic) Section 276 in respect to an attachment in execution of a decree.

7. In this view we think we are supported by the decision in the case of Raj Chunder Roy v. Isser Chunder Roy (1865) Bourke, 0.C, 139, where Mr. Justice Norman, referring to the provisions of the old Code in regard to attachment before judgment, expressed the opinion that the process in attachment before judgment is in all respects the same as in cases of attachment after judgment, and that the effect, namely, of binding the property so as to prevent private alienation, is the same in both cases. No doubt, as has been pointed out by the learned Vakil for the appellant, the precise question that the learned Judge had to decide in that case was different from that with which we have to deal here; but the reasoning upon which that decision was arrived at, is the reasoning which we think we may well adopt in this case. If we were to adopt the opposite view, an attachment before judgment would be entirely futile and of no efficacy whatever.

8. In this view of the matter, we are of opinion that the Courts below have come to a right conclusion. The result is that the appeal must be dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //