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Obhoy Churn Coondoo and anr. Vs. Golam Ali, Alias Nocoury Meah - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata
Decided On
Judge
Reported in(1881)ILR7Cal410
AppellantObhoy Churn Coondoo and anr.
RespondentGolam Ali, Alias Nocoury Meah
Excerpt:
jurisdiction - act vi of 1871, section 18--sale in execution of decree--civil procedure code (act x of 1877), section 285. - .....the property was just attached. now, the circumstances of this case are, that the plaintiffs' sale and golam ali's sale were, according to the practice which governs such matters, both conducted by the same officer of the judge's court, and the same date was fixed for the two sales. probably, by accident, the sale under the plaintiffs' decree and attachment was first proceeded with ; and after their sale was concluded, they took objection in the additional munsifs court that the sale in execution of golam ali's decree should be stopped. that objection must have been taken in the presence of golam ali. the objection was not allowed, but the additional munsif made an order that the sale under golam ali's decree and attachment should proceed, subject to the validity of the prior sale.....
Judgment:

Pontifex, J.

1. The plaintiffs in this case having obtained a decree in the Court of the Second Munsif of Barisal, attached certain property within the jurisdiction of the Second Munsif. That attachment was made in September 1877. But one Golam Ali had obtained a decree in the Court of the Additional Munsif of Barisal, and had, under such decree, directly attached the same property prior to the plaintiffs' attachment, viz., in August 1877. A sale took place under the plaintiffs' attachment first, and the plaintiffs purchased on the 4th December in execution of their own decree. Subsequently, a sale took place on the 6th December under Golam Ali's attachment, and he purchased in execution of his decree. The plaintiff afterwards brought several rent-suits against the ryots occupying the land, and Golam Ali intervened in those suits. Two of those suits have now come on appeal before us, and the question to be decided in these appeals is, whether the plaintiffs are entitled to recover rent from the ryots. Now, the Subordinate Judge has held, that inasmuch as the plaintiffs' purchase took place under an attachment later in point of date than the attachment by Golam Ali, nothing passed to the plaintiffs at the sale in execution of their decree ; and he, therefore, dismissed their suits. It was argued before the Subordinate Judge that, inasmuch as, under Section 18, Act VI of 1871(q. v. supra, 7 Cal. 410.) the District Judge had assigned to the three separate Munsifs, in his district certain local limits, and inasmuch as this particular land was situate within the limits assigned to the Second Munsif, the Additional Munsif had no authority to attach this particular land directly, it not being within the limits of his* jurisdiction; and that, in accordance with Section 286 of Act VIII of 1859, he ought to have transmitted Golam Ali's decree for execution and attachment by the Second Munsif. That the Additional Munsif having no jurisdiction to attach, he had no jurisdiction to bring this property to sale, although the attachment made under Golam Ali's decree was earlier in point of date than the attachment under which the plaintiffs claimed. The Subordinate Judge decided, that, under Section 18 of Act VI of 1871, the assignment of limits to the separate Munsifs by the District Judge is only material with respect to the institution of regular suits. We think he is wrong in that conclusion. There is nothing in Section 18 to limit the purposes for which local jurisdictions are assigned to each Munsif; and we are of opinion, that when the District Judge assigned limits to each Munsif, the jurisdiction of each Munsif was confined to the particular limits, assigned to him. And as the land in question is situate within the limits assigned to the Second Munsif, we think the Additional Munsif had no jurisdiction to attach or sell this land, which was within the jurisdiction of the Second Munsif. Therefore, in our opinion, the attachment by Golam Ali was made improperly and without jurisdiction. The Subordinate Judge has also held that Section 285 of the present Procedure Code applies to this case, that is, of course, assuming that the Additional Munsif had jurisdiction to attach and sell this property. It appears to us extremely doubtful whether Section 285 applies to immoveable property at all. The words of it- 'where property not in the custody of any Court has been attached in execution, the Court which shall receive or realize such property,' &c.-seem; to us to be more applicable to moveable than to immoveable property. But even assuming that the section does apply to immoveable property, there is nothing in it, so far as we can see, which would absolutely destroy the validity of a sale already made, provided the proceeds of such sale were paid into the Court under whose decree the property was just attached. Now, the circumstances of this case are, that the plaintiffs' sale and Golam Ali's sale were, according to the practice which governs such matters, both conducted by the same officer of the Judge's Court, and the same date was fixed for the two sales. Probably, by accident, the sale under the plaintiffs' decree and attachment was first proceeded with ; and after their sale was concluded, they took objection in the Additional Munsifs Court that the sale in execution of Golam Ali's decree should be stopped. That objection must have been taken in the presence of Golam Ali. The objection was not allowed, but the Additional Munsif made an order that the sale under Golam Ali's decree and attachment should proceed, subject to the validity of the prior sale under the plaintiffs' decree and attachment if such sale was valid, and the sale was proceeded with and Golam Ali purchased it. But, as a matter of fact, inasmuch as these attachments were made in August and September 1877, the procedure will be governed by the old Code, and not by the present Code ; for, by Section 3 of the present Code, it is provided, that nothing in the new Code, contained 'shall affect any proceedings after decree that may have been commenced and were still pending at that date.' Now, the attachments under both these decrees were pending at the time when the new Code came into operation. They would, therefore, he governed by the practice under the old Code : and for the reasons stated by me in the case of Chutka Panda v Goburdhone Dass (6 C.L.R., 85), it appears that, under the old Code, it was held, that a sale under a second attachment was valid, and would prevail over a sale subsequently held under a prior attachment. Under these circumstances, therefore, we are of opinion that the plaintiffs are entitled to recover in this suit; but inasmuch as the Subordinate Judge reserved for trial in a regular suit the question of title between the plaintiffs and Golam Ali, and as there are circumstances connected with the plaintiffs' purchase, as for example, the very inadequate price paid by the plaintiffs on the sale to them, which render it desirable that the question should be left open, we reserve liberty to Golam Ali to institute any suit with respect to the title to this land that he may be advised to bring against the plaintiffs. The appeal will be allowed with costs, the judgment of the Munsif being restored. This judgment will apply to No. 2466.


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