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Sm. Amodini Dassi W/O Balai Chand Mullick Vs. Raghu Nath Mullick and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal236
AppellantSm. Amodini Dassi W/O Balai Chand Mullick
RespondentRaghu Nath Mullick and anr.
Cases ReferredMuthiah Chetti v. Palaniappa Chetti
Excerpt:
- .....the court held that the provisional attachment had not been made absolute and there-fore the decree-holder would not derive any advantage from the provisional attachment and he must again attach the property before bringing in the sale and that) the plaintiff must issue a notice upon the judgment-debtor under order 21, rule 22. against that order, the decree-holder appealed and the court of appeal below allowed the appeal holding that the attachment made by the court before the decree was good' and the execution should proceed from the stage where it stopped. the objector, as stated above, has made a second appeal to this court.2. it has been argued that inasmuch as the decree-holder urged that the objector had no locus standi and was not a representative of the judgment debtor,.....
Judgment:

M.C. Ghose, J.

1. This is a second appeal by the objector in an execution case. The facts in short are as follows: The predecessor of opposite party 1 on 3rd October 1934 instituted a suit for money against opposite party 2 and on the next day applied to the Court for attachment before judgment of the defendants' property under Order 38, Rule 5. The Court issued an order of conditional attachment which was duly served, and on the next day, i.e. on 17th November 1934, the defendant did not appear to show cause. The Court ordered issue of a registered postcard on the defendant. The said postcard was returned. refused. Thereafter the suit was decreed ex parte. About l 1/2 years later, namely on 20th April 1936, the appellant purchased the property which belonged to the judgment-debtor and his two brothers. The execution case was filed in May 1936. The appellant appeared and objected. The trial Court found that as the appellant was a purchaser after the attachment, she had no locus standi to maintain any objection. At the same time, the trial Court proceeded indirectly to give her some relief, namely the Court held that the provisional attachment had not been made absolute and there-fore the decree-holder would not derive any advantage from the provisional attachment and he must again attach the property before bringing in the sale and that) the plaintiff must issue a notice upon the judgment-debtor under Order 21, Rule 22. Against that order, the decree-holder appealed and the Court of Appeal below allowed the appeal holding that the attachment made by the Court before the decree was good' and the execution should proceed from the stage where it stopped. The objector, as stated above, has made a second appeal to this Court.

2. It has been argued that inasmuch as the decree-holder urged that the objector had no locus standi and was not a representative of the judgment debtor, the decree-holder had no right to appeal to the lower Appellate Court. There is no merit in this contention. Though the trial Court found that the appellant had no locus standi, yet the trial Court proceeded to give her certain relief and the decree-holder's position was made worse by her intervention. He had certainly a right of appeal as the action taken by the Court was in effect under Section 47.

3. The next point taken in appeal is that the attachment was not legal inasmuch as no order absolute of attachment was made by the Court. The learned advocate has quoted from the High Court Manual for the conduct of Civil Cases, Rule 30 (3) p. 24 and urged that the conditional order of attachment made in this case had to be implemented by a subsequent order making It absolute. No subsequent order making it absolute having been made, the provisional attachment is of no effect whatsoever. The case in Bharat Chandra Pal v. Gouranga Chandra Pal : AIR1927Cal885 was quoted in support of the proposition that non-compliance

with the provision contained in Order 21, Rule 54, 'Civil P.C. which requires the Court in the case of attachment of immovable property, to pass an order on the judgment-debtor prohibiting him from transferring the property or making any charge thereon and all persons from taking any benefit from such transfer or charge, renders an attachment void and ineffectual.

4. The Privy Council case in Muthiah Chetti v. Palaniappa Chetti (1928) 15 AIR PC 139 was also cited to show that the attachment must be actually made, and that a mere order of a Court does not effect the attachment. The attachment itself is something saparate from the mere order which, is to be done and effected before the attachment can be declared to have been accomplished.

5. Now, in this case, the first order of attachment was stated to be a conditional attachment. No process under Order 21, Rule 54 was issued, but as a matter of fact, the Court bailiff observed all the formalities required by Order 21, Rule 54. The attachment therefore was effectually done by the bailiff at the spot. The defendant did not appear to show cause. Thereafter, all that the Court had to do was to pass an order making the conditional order to be absolute. The Court omitted to do it but decreed the suit ex parte. In my opinion as the attachment was validly made, the mere omission to record an order absolute does not make the attachment ineffectual. The appellant who purchased the property 1 1/2 years after the decree cannot claim any benefit having regard to the provisions of Section 64 of the Code. The appellant's only remedy to safe-guard the property is to pay the decretal sum to the decree-holder and seek any redress that there may be from the parties from whom she purchased the property. The appeal is dismissed with costs, hearing fee one gold mohur. The application is rejected. Leave to prefer a Letters Patent appeal is refused.


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