1. This appeal arises out of a suit under the provisions of Order 21, Rule 63, Civil P. C., for a declaration of the plaintiff-appellant's title to premises No. 24, Bhabananda Road, Tollygunge, which were originally P318, Russa Road, and for the release of the said premises from attachment in execution of a decree obtained by defendant 1, the Bengal Immunity Company, against one Haridas Banerjee, defendant 2 in the suit. The facts in so far as they are material for the purposes of this appeal are as follows: On 26th October 1933 Charulata, wife of Haridas Banerji, acquired the premises in suit by purchase as the benamidar of her husband. The benami nature of the transaction has been found as a fact by the Court below, and that finding is not challenged. On 5th December 1934 Charulata mortgaged the property to one Pulin Krishna Roy, by a deed in which Haridas joined as a confirming party. Haridas, who was employed by the Bengal Immunity Company, was charged with defalcation of the money of his employers who instituted criminal proceedings against him which led to his conviction at the High Court Sessions. On 23rd November 1934, Haridas was a prisoner in the Presidency Jail in consequence of these proceedings. The Bengal Immunity Company instituted also a suit on the original side of the High Court for recovery from Haridas of the amount said to have been misappropriated by him. In this suit, and while it was pending, the plaintiffs (The Bengal Immunity Company) applied for attachment before judgment of No. 24, Bhabananda Road, Tollygunj (P318, Russa Road), and also at the same time for an 'interim attachment and injunction pending the hearing of the application.' The prayer for notice of motion to issue was granted, and here it should be noted that as minuted, the order of the Court on the prayer for interim attachment and injunction was 'interim injunction to issue.' At the foot of the notice of motion, there appears however an endorsement over the signature of the Assistant Registrar which is in these terms: 'N.B.--That interim attachment and injunction pending the hearing has this day been granted.' On the same day, that is 23rd November, the notice of motion was served on Haridas, the service being effected by an attorney's clerk in the following manner: One copy of the notice of motion was delivered to the brother-in-law of Haridas at the latter's residence at No. P318, Russa Road, and another copy was taken to the Presidency Jail, where Haridas was at the time incarcerated, and was delivered to the Superintendent of the Jail for service on Haridas who refused to accept it. It is not disputed that nothing to signify that an attachment of immovable property was sought to be effected was done thereafter until 17th December following. Meanwhile, as already stated, the property in suit was, on 5th December, mortgaged by Charulata and Haridas to Pulin Krishna Roy. The application for attachment before judgment was finally heard and granted on 3rd December. The material words of the order are these:
It is ordered that a writ of attachment do issue out of and under the seal of this Court commanding the Sheriff of Calcutta to attach until the final disposal of this suit or until the further order of this Court the premises No. P318, Russa Road . . . and it appearing that the properties to be attached as aforesaid are situated within the local limits of the jurisdiction of the Court of the District Judge of 24-Parganas it is further ordered under the provisions of Section 136, Civil P.O., to send a copy of the said writ of attachment... to the said Court of the District Judge of 24-Parganas for execution.
This order was implemented on 17th December by service of the writ of attachment in the manner prescribed by Order 21, Rule 54 (2), that is to say, by proclaiming the contents of the writ of attachment by beat of drum upon the land of the premises in suit, and by affixing a copy of the writ of attachment on the outer door of the pucca building situated on that land. These acts were done by a process server of the Court of the District Judge of Alipore, 24-Parganas. On 19th May 1937 Pulin Krishna Roy, the mortgagee, instituted a suit for enforcement of the mortgage, and in due course obtained a decree in execution of which he himself purchased the property. He obtained delivery of possession on 24th December 1938 and sold the property to the plaintiff in the present suit on 11th January 1939. It has been found as a fact that this sale was a bona fide transaction and no question of collusion arises.
2. To go back to the suit of the Bengal Immunity Company against Haridas; the former obtained a decree which was put into execution through the Court of the first Subordinate Judge of Alipur, 24-Parganas. An attachment of the property in execution of the decree under Order 21, Rule 54 was again effected, and this was done on 18th July 1938. The plaintiff preferred an application under the provisions of Order 21, Rule 58 on 22nd May 1939, which was rejected, on 24th May 1939, and then the plaintiff instituted the present suit which has been dismissed by the Court below. The only question which arises for consideration in this appeal is whether the mortgage by Charulata in favour of Pulin Krishna Roy, which was executed on 5th December 1934, could operate to pass any interest in the property as it took place after 23rd November 1934, on which date the notice of motion and interim attachment were directed to issue and on which day also they were served by the attorney's clerk in the manner stated above. Section 64 of the Code provides as follows :
Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.
3. Now it is beyond dispute, that an attachment to render a subsequent alienation invalid must be made in the manner prescribed by law. Attachment, as the Privy Council has laid down in Muthiah Chetti v. Palaniappa. ('28) 15 A. I. R. 1928 P. C. 139 at p. 261 is a real thing distinct and separate from an order for attachment. Lord Shaw said in that case :
A fasciculus of clauses, beginning at Rule 41 of Order 21, and applicable to 'attachment of property', shows in instance after instance that attachment is a real thing with a variety of real applications suited to the nature of the property to be attached... these instances go to show that under the Code of Civil Procedure in India the most anxious provisions are enacted in order to prevent a mere order of a Court from effecting attachment and plainly indicating that the attachment itself is something separate from the mere order, and is something which is to be done and effected before attachment can be declared to have been accomplished... Their Lordships need not repeat in another form these propositions. The order is one thing, the attachment is another. No property can be declared to be attached unless first the order for attachment has been issued, and secondly, in execution of that order the other things prescribed by the rules in the Code have been done.
4. The rule enunciated by the Privy Council applies with equal force and precision whether the attachment is in execution of a decree, or is an attachment before judgment, and whether the mode and manner in which it is to be effected are those contained in the Code, or those prescribed by the Rules of the Original Side of this Court. A bare reading of the provisions of the Code and of the Original Side Rules relating to attachment will make this reasonably clear. First as regards attachment in execution of decrees. Order 21, Rule 54 is in the following terms:
(1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.
(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate.
5. From Sub-rule (1) of this provision, it follows that the essence of an attachment is an order prohibiting the judgment-debtor from transferring or charging the attached property in any way. Sub-rule (2) makes it apparent that the order requires the formality of a proclamation at some place on or adjacent to the property to be attached, and also the exhibition of a copy of the order by affixing on a conspicuous part of the property and a conspicuous part of the court house. The hand by which these acts are to be performed is the hand of an officer of the Court, which, in Courts other than the High Court, is a process-server of the Court concerned. On the Original Side of the High Court, the rules do not expressly prescribe any special modus for proclamation of the order and exhibition of a copy thereof. It follows therefore that the provisions of the Code, that is to say, of Order 21, Rule 54 must apply. The rules made by the Calcutta High Court, on its Original Side, which relate to execution of decrees and orders, are contained in chap. 17 of the Original Side Rules of this Court, and some rules regarding processes are in chap. 8. These rules serve only to supplement the provisions of the Code which govern execution. The following are the relevant rules:
Chap. 8, Rule 14.--All writs for the attachment of property or the arrest of any person, in any civil suit, within the local limits of the jurisdiction of this Court, all prohibitory orders, citations, notices to respondents, and all other writs and judicial process issued by this Court for service or execution within the local limits aforesaid, except such as may by Order 49, Rule 1 of the Code or otherwise be served by the attorneys in the suits or by persons employed by them, shall be delivered to the Sheriff for service or execution, unless the Court or a Judge shall otherwise order :
Provided that a party appearing in person may serve any such process as may be served by an attorney.
Provided also that in cases where the plaintiff's attorney has received a letter from the defendant's attorney expressing readiness to accept service, the plaintiff's attorney or some person employed by him may serve the writ of summons.
Chap. 17, Rule 18.--Every warrant of arrest or attachment shall be returnable by the Sheriff, to the office of the Registrar, immediately after the service thereof, or where he has been unable to serve the same, not later than one month from the date of the delivery of the warrant to him, unless such time be extended by an order to be obtained ex parte in Chambers. The Sheriff shall certify, by endorsement on the warrant the date and manner in which it has been executed, or why it has not been executed
6. What, in these two rules, is important for our, present purpose, is that writs for attachment of property must be delivered to the Sheriff for execution, and must by him be returned to the office of the Registrar after service. In the present case the notice of motion was not delivered to the Sheriff at all, as his Register, which we have examined for ourselves, clearly shows, but was taken for service by an attorney's clerk who delivered one copy of it at the residence of Haridas, and another copy at the Presidency Jail where Haridas was at that time lodged in custody. No attempt was made to proclaim the contents of the notice on or near the premises to be attached, nor was a copy of it affixed to any place. Order 49, Rule 1 of the Code, excepts writs of execution from the category of processes which may be served by attorneys or by persons employed by them. That rule is as follows:
Notice to produce documents, summonses to witnesses, and every other judicial process, issued in the exercise of the original civil jurisdiction of the High Court, and of its matrimonial, testamentary and intestate jurisdictions, except summonses to defendants, writs of execution and notices to respondents may be served by the attorneys in the suit, or by persons employed by them, or by such other persons as the High Court, by any rule or order, directs.
7. In the present case, as the property in question was situated within the jurisdiction of the District Judge of the 24-Parganas, a writ of attachment before judgment would require to be sent to that Court for execution. This procedure is enacted in Section 136 (1) of the Code, and was in fact followed after the Court made an order for attachment before judgment at the final hearing of the application on 3rd December 1944.
8. Between attachment before judgment and attachment in execution there exist features of essential similarity. Both are prohibitory orders. Both entail the same consequences to a purchaser who takes any interest in property after it has been attached ; he purchases at his peril, and if it can be established that the attachment was subsisting at the time of the conveyance to him, he takes just nothing as against the decree-holder. Further, under O. 38, Rule 11 an attachment before judgment may continue so as to ripen into an attachment in execution if the suit terminates in a decree. The formalities required for the accomplishment of the act of attachment give publicity to the act, and thereby operate as a warning to intending purchasers. If such warning is necessary after a Court has pronounced a decree, it stands to reason that it is all the more necessary where no decree has been passed, and where the dispute between the parties to the litigation has perhaps not even been heard. The necessity has received recognition in O. 38, Rule 7, which provides that attachment before judgment shall be made in the manner provided for the attachment of the property in execution of a decree.
9. In our judgment it makes no difference that the attachment was ordered by the Original Side of this Court. Rule 45 in Chap. 17, of the Original Side Rules expressly says that Rr. 15 to 25 of that chapter 'shall severally apply mutatis mutandis to warrants of arrest and attachment before judgment,' and in this connexion reference may again be made to Rule 18 of chap. 17 which has already been set out above.
10. In the present case it is clear, as already stated, that the notice of motion containing an endorsement of the Assistant Registrar that interim attachment pending the hearing of the application had on that day been granted, was never made over to the Sheriff or sent for execution to the Court of the District Judge, 24-Parganas. It was taken out for service by an attorney's clerk, a person who by reason of Order 49, Rule 1 read with O. 38, Rule 7, had no power to serve a writ for attachment before judgment. The service was effected in a manner which fell utterly short of the requirements for attachment of immovable property, for the contents of the notice of motion were not proclaimed on or near the property to be attached, nor was a copy of the notice affixed either on the property or on the court-house. It may further be noted that the notice of motion contained no words of formal prohibition such as are contemplated by Rule 54 (1), but only a bare endorsement by an Assistant Registrar that an interim attachment had been granted.
11. The service, such as it was, of the notice of motion, did not have the effect of an attachment of the property in question. There was therefore no attachment subsisting on 5th December 1944, when the mortgage in favour of Pulin Krishna Roy was executed and Section 64 of the Code has no application. Dr. Pal on behalf of the respondents advanced the contention that, as the property in suit was purchased by Haridas with money belonging to the respondents which Haridas misappropriated, the respondents were entitled to follow the property and to recover it even from a purchaser in good faith. The case in Gooroo Das Pyne v. Ram Narain Sahoo. ('83) 10 Cal. 860 : 11 I. A. 59 was cited in support of this contention, but on the facts that case is clearly distinguishable. In any event the point was never taken in the Court below, and is an' entirely new defence involving questions of fact not raised at the trial. It cannot, therefore, be entertained at this stage. The result is that this appeal must be allowed. The judgment and decree of the Court below are set aside and the plaintiff's claim is decreed with costs--hearing fee being assessed at ten gold mohurs.
12. I agree.