Skip to content


Ram Kanai Pal and ors. Vs. Purna Chandra Alias Joneswar Poddar and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in65Ind.Cas.650
AppellantRam Kanai Pal and ors.
RespondentPurna Chandra Alias Joneswar Poddar and ors.
Cases ReferredMungniram Marwari v. Gursahai Nand
Excerpt:
attachment of decree before formally drawn up, validity of - date of decree--civil procedure code (act v of 1908), order xx, rule 7, order xxi, rule 53. - .....substituted as attaching decree holders under the following circumstances.2. it appears that one mathura nath poddar obtained a preliminary decree in a suit brought by him for partition against his co-sharers, under the judgment in that case, the plaintiff, mothura nath, obtained certain immoveable properties in his share, and was held entitled to certain sums of money (as owelty money) from five persons. this judgment was passed on the 18th december 1917. there was considerable delay in drawing up the decree. as a matter of facts the decree was not drawn up and signed until the 9th december 1918. after the judgment had been delivered, the respondents applied for attachment of the money portion of the decree, and notice of attachment was issued on the 2nd october 1918. it was returned.....
Judgment:

1. This appeal is against an order directing the respondents to be substituted as attaching decree holders under the following circumstances.

2. It appears that one Mathura Nath Poddar obtained a preliminary decree in a suit brought by him for partition against his co-sharers, Under the judgment in that case, the plaintiff, Mothura Nath, obtained certain immoveable properties in his share, and was held entitled to certain sums of money (as owelty money) from five persons. This judgment was passed on the 18th December 1917. There was considerable delay in drawing up the decree. As a matter of facts the decree was not drawn up and signed until the 9th December 1918. After the judgment had been delivered, the respondents applied for attachment of the money portion of the decree, and notice of attachment was issued on the 2nd October 1918. It was returned on the ground that the decree had not been prepared at that time. An application was made again on the 25th November 1918 by the respondents for attachment of the decree. On the next day, the 26th November, the Court sent the notice of attachment and this time the notice was kept on the file in order that the decree might be attached after it was made. On the next day, 27th November, the judgment-debtor, Mathura Nath, assigned all his interest in the subject-matter of the suit, including the moneys which Mathura Nath was to get from his five co-sharers, to Ram Kanai Pal and other, the appellants before us. The decree was not prepared and signed until the 9th December 1918.

3. The assignees, Ram Kanai Pal and others, applied for being substitued in the place of Mathura Nath. The respondents, Sananda Chandra Pal and others, also applied for being substituted as attaching creditors and they contended that, as attaching creditors, they were entitled to have preference over the assignees. They also impugned the assignment itself as not being bona fide.

4. The Court below held that the attachment was valid and directed the respondents to be substituted as attaching decree-holders. The assignees appealed to this Court, and the case was remanded to the Court below for a finding as to the bona fides of the assignment in favour of Ram Kanai Pal and others. The Court below has come to the finding that the assignment was a bona fide one.

5. The first question for consideration, therefore, is, whether there was a valid attachment of the decree prior to the assignment in favour of Ram Kanai Pal and others It is contended on behalf of the appellant that, under Section 60 of the Civil Procedure Code, it is only saleable property (with certain exceptions) which can be attached, that Order XXI, Rule 53 says that where the property to be attached is a decree, it shall be attached in a particular manner, that the ordering portion of a judgment merely states the conclusion at which the Court arrives and is not a decree, and that so long as the decree is not drawn up and signed there is no decree which can be attached. But the final judgment in the partition suit was passed on the 13th December 1917, under that judgment Mathura Nath became entitled to certain properties and to certain sums of money (as owelty money) from the defendants; the judgment not only gave the conclusions arrived at by the Court, but also gave directions. He, therefore, obtained the decree on that day though the formal decree was drawn up and signed later on.

6. In the case of Mungniram Marwari v. Gursahai Nand 17 C. 847 : 16 I.A. 195 : 13 Ind. Jur 449 : 5 Sar, P.G.J. 463 : 8 Ind. Dec. (N.S.) 770 P.C.J. certain proceedings taken by the guardian of a minor were sought to be set aside on the ground that the minor had not been properly represented by the guardian as the certificate of guardianship had not been issued to him though the Court had appointed him guardian. The Judicial Committee observed (See pages 356-357) 'their Lordships are of opinion that when the Court makes that inquiry, and comes to a decision that the application should be allowed, that is doing all that is substantially necessary in the matter and when the order is made that the applicant shall have his certificate, the applicant really then obtains his certificate. All is done at that time which is necessary to how that he is the person who should have the certificate. He, then, by getting that order, substantially obtains the certificate, although the officer of the Court, whose duty it would be to draw up the certificate, and prepare it for the signature of the Judge, or the seal of the Court to be attached to it, may not do that for some time afterwards, on account of the course of business or the party not applying to him for it. When a man obtains an order for a certificate he does in substance comply with the terms of this Act, in the same way as when a person has the judgment of the Court that he shall have a decree in his suit it may be said that he then obtains his decree. The decree, when it is drawn up afterwards, relates back to that time; and so would the certificate in this case relate back; and the terms of the Act that he shall have obtained such certificate are complied with.' We think the observations may be applied to this case.

7. Under Order XX, Rule 7 of the Civil Procedure Code the decree is to bear the date of judgment, though the decree may be signed subsequently. It is true that the decree-holder has to pay stamp duty under the Stamp Act before the decree can be drawn up But upon the payment of the stamp the decree is drawn up and signed. When it is signed it relates back to the date of the judgment, The decree, therefore, is in existence on the date of the judgment except for certain purposes (such as the computation of the period of limitation prescribed for an appeal which is to be computed from the date on which the decree is signed). We think, therefore, that there was a decree in favour of Mathura Nath in the ordering portion of the judgment though the formal decree was not drawn up and signed until the 9th December 1918 after the necessary stamp duty was paid. It may be mentioned here that the conveyance obtained by the assignees themselves professed to transfer the decree, and the rights and interest of the judgment-debtor in the partition suit.

8. It is next contended on behalf of the appellants that the decree obtained by Mathura Nath was for immoveable properties as well as for certain sums of money, and the notice having directed attachment of the decree (i.e., the whole decree) and the attachment having been made accordingly, was bad because the procedure for attachment of a decree other than a decree for money or a mortgage decree, is different and was not followed. But the decree-holders applied for attachment only of the money portion of the decree, and they do not claim any right on the basis of attachment of any other portion of the decree. The notice, in so far as it directed the attachment of the other portion of the decree no doubt must be treated as ineffectual, but that does not affect the attachment of the decree in so far as it awarded certain sums of money to Mathura Nath.

9. The attaching decree-holders, however claimed the monies payable to Mathura Nath by three only out of the five judgment-debtors. The Court below was, therefore, wrong in directing the attaching decree-holders to be substituted in respect of the decree which directed the payment of monies by the judgment-debtors (meaning thereby all the judgment-debtors) to Mathura Nath. The order of the Court below will, therefore, be varied by ordering that the attaching decree-holders will be substituted in respect of the decree in so far as it directs payment of the sums by Gopal Chandra Poddar, Rai Mohan Poddar, and Kali Kumar Poddar, (now represented by Kamini Kumar Poddar and Akshoy Kumar Poddar) to Mathura Nath and that the assignees Ram Kanai Pal and others will be entitled to be substituted in respect of the rest of the decree. In other respects, the order of the Court below will be confirmed. No order as to costs.


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