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Simrick Lal Bhakat Vs. Radharaman Kalidaha and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in32Ind.Cas.276
AppellantSimrick Lal Bhakat
RespondentRadharaman Kalidaha and ors.
Excerpt:
civil procedure code (act v of 1908), section 64, order xxi, rule 54 - attachment, effect of, from which date--civil procedure code (act xiv of 1882), section 276. - .....should come into effect from the date of the making of the order. for the respondent it is urged that rule 54 should be read as a whole, and that attachment cannot be said to have taken effect until the provisions of the section as a whole have been complied with. it is settled law that unless the whole of the provisions of rule 54 have been complied with, the attachment is not effective. i cannot conceive it possible that an attachment may be effective from the date of the court's order if that order is in due course promulgated, and ineffective altogether if subsequent to the court's order there is a failure to lawfully promulgate the order. i hold that inasmuch as the order of attachment is not effective until it has been duly promulgated, such an order takes effect only from.....
Judgment:

Roe, J.

1. The sole question of law involved in this case is, it being proved that a transfer of property was made to the prejudice of the decree-holder between the date of the order by a Munsif for an attachment of the property transferred and the date of the promulgation of that order, is that alienation void in so far as it affects the attaching decree-holder. I have no doubt that under Section 276 of the old Code (and this is admitted by the learned Vakil for the appellant) an attachment is not a good attachment unless it has been 'duly intimated and made known.' i am asked to hold that from Section 64 of the new Code of Civil Procedure, the words 'duly intimated and made known' have been deliberately omitted and the law changed. I cannot believe that such a change could have been made in the law without some explanation of the change in the statement of objects and reasons. The law as it now stands is no less clear than it was in the old Code. Section 64 sets forth the effect of an attachment. In Order XXI, Rule 54, Civil Procedure Code, the method of making attachment is described.

2. For the appellant it is urged that Clause 1 of Rule 54 is complete in itself and that the attachment should come into effect from the date of the making of the order. For the respondent it is urged that Rule 54 should be read as a whole, and that attachment cannot be said to have taken effect until the provisions of the section as a whole have been complied with. It is settled law that unless the whole of the provisions of Rule 54 have been complied with, the attachment is not effective. I cannot conceive it possible that an attachment may be effective from the date of the Court's order if that order is in due course promulgated, and ineffective altogether if subsequent to the Court's order there is a failure to lawfully promulgate the order. I hold that inasmuch as the order of attachment is not effective until it has been duly promulgated, such an order takes effect only from the date of the actual promulgation. On this point the appeal must fail. It has been further urged that the lower Court has refused to consider the effect of certain proceedings taken in respect to another decree by a person named Prosanna. There is no mention whatever of any argument before the learned District Judge or of any suggestion in that Court that the proceedings in the case of Prosanna affected in any degree the merits of the present case. The learned Judge has distinctly said that two points only were urged before him. That statement is a statement behind which the appellant cannot go. It was not in the lower Appellate Court argued that Prosanna's proceedings affected the present case. I cannot allow the point to be raised now before me.

3. The appeal is dismissed with costs.


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