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Sasirama Kumari Vs. Meherban Khan and 0rs. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in9Ind.Cas.918
AppellantSasirama Kumari
RespondentMeherban Khan and 0rs.
Cases Referred and Sheodhyan v. Bholanath
Excerpt:
civil procedure code (act xiv of 1882), section 488 - attachment before judgment--dismissal of suit, effect of--reversal of judgment on appeal, effect of--sale without attachment--inherent power of court. - .....on the 10th december, 1906, the plaintiffs-creditors preferred an appeal to this court against the decree of dismissal, but no application appears to have been made for an attachment before judgment during the pendency of the appeal. the appeal was heard by a division bench of this court, and on the 2nd august, 1909, the decree of dismissal was reversed and a decree made in favour of the plaintiffs for the sum claimed. the defendant has obtained leave to appeal to his majesty in council against this decree, and the matter is now before their lordships of the judicial committee. meanwhile, on the 19th august, 1907, the kumar, whose objection to the attachment before judgment had been overruled on the 25th august, 1906, commenced an action on the 19th august, 1907, for declaration of the.....
Judgment:

1. We are invited in this rule to set aside an order by which an objection to an execution sale has been summarily dismissed on the ground that the petitioner before us has no locus standi in the matter. The circumstances, under which the order in question has been made, are not the subject of controversy, and may be briefly narrated. Raja Padmananda Singh, and his son Kumar Chandrananda Singh were declared to be equally entitled to a seven-anna share of the Baneli Raj estate as the result of a suit in the Court of the District Judge of Bhagulpore which was terminated by a consent decree on the 14th August, 1.903. On the 26th September, 1905, pursuant to an agreement of an earlier date alleged to have been made on the 15th July, 1905, the Raja conveyed his moiety in the aforesaid seven-anna share to his son by a registered deed of conveyance. The result of the transaction was, that Kumar Chandrananda became entitled to hold the entire seven-anna share in his own right. Meanwhile, on the 5th September, 1905, the opposite parties to the present rule, Meherban Khan and Ayodha Prosad Chowdhury, had commenced a suit against Raja Padmananda Singh for recovery of a large sum of money on the basis of two promissory-notes alleged to have been executed by him on the 15th December, 1904, and 16th June, 1905. Two days after the institution of this suit, the plaintiffs applied for attachment before judgment of three properties to the extent of the interest of the Raja thereunder. A conditional order was made, and it is alleged (but the statement is disputed) that an attachment was actually effected on the 16th and 20th September, 1905. The Kumar appears to have preferred an objection to the attachment, which was overruled on the 25th August, 1906. The suit itself was dismissed on the 17th September, 1906 on the ground that the promissory-notes were not genuine. On the 22nd October, 1906, the defendant, as also the Kumar, petitioned to the Court for withdrawal of the attachment under Section 488 of the Civil Procedure Code of 1832. On the same date, the Subordinate Judge recorded an order to the effect, that as the suit had been dismissed, the attachment was withdrawn. On the 10th December, 1906, the plaintiffs-creditors preferred an appeal to this Court against the decree of dismissal, but no application appears to have been made for an attachment before judgment during the pendency of the appeal. The appeal was heard by a Division Bench of this Court, and on the 2nd August, 1909, the decree of dismissal was reversed and a decree made in favour of the plaintiffs for the sum claimed. The defendant has obtained leave to appeal to His Majesty in Council against this decree, and the matter is now before their Lordships of the Judicial Committee. Meanwhile, on the 19th August, 1907, the Kumar, whose objection to the attachment before judgment had been overruled on the 25th August, 1906, commenced an action on the 19th August, 1907, for declaration of the invalidity of the attachment. The Court of first instance held that the attachment before judgment was illegal and void, and that in any event it had come to an end with the dismissal of the original suit. In this view, the Subordinate Judge dismissed the suit on the 27th February, 1909. On the 20th June, 1909, the petitioner before us, the widow of the Kumar, who had died during the pendency of the litigation in the Court below, preferred an appeal to this Court against the decree of dismissal, which is still pending. In the interval, the creditors, who had obtained a decree from this Court against the Raja, applied for sale of the properties which had been attached before judgment at their instance by the Subordinate Judge. On the 21st June, 1910, the petitioner preferred a claim and objected to the sale on the ground that the attachment, assuming it to have been effected regularly, had terminated with the dismissal of the suit, that it was not revived when the decree of dismissal was reversed by this Court; and that, consequently, no sale could be held without a fresh attachment. The Subordinate Judge overruled this objection on the ground that the petitioner had no locus standi in the matter, and directed execution to proceed. This order is challenged by the petitioner on the ground that the Court below has taken an erroneous view of the effect of the dismissal of the suit, and of the reversal of judgment of dismissal on appeal, and that it had no jurisdiction to direct a sale of the disputed properties without a fresh attachment. This position has been strenuously contested on behalf of the creditors; it has been argued that even if the attachment be taken to have terminated with the dismissal of the suit, it was, in essence, a temporary suspension of the attachment, and that the effect of the reversal of the judgment on appeal, was to revive the attachment so as to justify a sale on the basis thereof. The question raised is one of some novelty and not entirely free from difficulty. But after careful consideration of the arguments addressed to us on both sides, we have arrived at the conclusion that the order of the Court below is erroneous and was made without jurisdiction.

2. Sections 483 to 490 of the Civil Procedure Code of 1882, deal with the subject of attachment before judgment. Section 483 defines the circumstances which justify an attachment before judgment. Section 484 authorises the Court to direct a conditional attachment of the properties of the defendant, which may be made absolute as indicated in the next following section. Section 488 then provides--we quote only so much of it as applies to the case before us--that when an order of attachment before judgment has been passed, the Court, which passed the order, shall remove the attachment when the Suit is dismissed. It is manifest from this section that the Legislature intended to make it obligatory upon the Court to withdraw an attachment before judgment upon the dismissal of the suit. In the case before us, the parties concerned had recourse to an additional precaution; they actually invited the Court to cancel the attachment and obtained an express order in that behalf. There is, consequently, no possible room for controversy that in this case the order of attachment before judgment ceased to be operative on the 22nd October, 1906. The question, therefore, narrows down to this: What was the effect of the reversal of the judgment of dismissal of the Court of first instance by this Court on the 2nd August, 1909? On behalf of the creditors it has been argued that the attachment was revived as soon as the judgment was reversed. It has been contended, on the other hand, by the claimant that the order of withdrawal of the attachment remained unaffected by the decree of reversal made by this Court. In support of the former contention, reliance has been placed by way of analogy upon the principle embodied in Section 144 of the Civil Procedure Code of 1908, namely, that upon reversal of a decree, it is competent to the Court to grant relief by way of restitution, that is, to restore to the successful party what he has lost in execution of the erroneous decree passed against him and subsequently reversed on appeal. This principle of restitution, it has Been suggested, is, as was explained by Sir Barnes Peacock, C.J., in Hurro Chunder v. Shoorodhonee 9 W.R. 402 : B.L.R. Sup. Vol. 985 based on the inherent powers of a Court of Justice, and ought to be applied to include cases like the present where the ultimately successful party seeks, in substance, the reversal of an interlocutory order as the necessary corollary of the reversal of the final decree in the cause. In answer to this argument, it has been contended on behalf of the claimant, that attachment before judgment is a purely statutory remedy, the operation whereof should not be extended beyond the provisions of the Code, because though the Legislature has made express provision for the withdrawal or cancellation of the order of attachment upon dismissal of the suit in the Original Court, it has omitted, for reasons about which we need not speculate, to make any provision for restoration of the attachment upon reversal of the decision of the Original Court on appeal. In support of this proposition, reference has been made to the cases of Moheeoodeen v. Ahmed Hossein 14 W.R. 384; Ram Chand v. Pitam Mal 10 A. 506 and Gossain Money v. Gour Pershad 11 C. 146. In our opinion there is no room for reasonable doubt that under the provisions of the Code, the reversal of the judgment of dismissal on appeal; does not operate to revive an attachment which has been cancelled under Section 488 of the Civil Procedure Code. The concluding words of Section 488 make it abundantly clear that upon the dismissal of the suit, it is the duty of the Court to remove the attachment. Such a provision as this is inconsistent with the theory that the attachment may be in a condition of temporary suspension during the pendency of a possible appeal and may be restored to life in the event of ultimate reversal of the decree of the Court of first instance. In so far as the Courts of this country and of England are concerned, there does not appear to be any authority directly in point, but the question appears to have been frequently raised in the American Courts. As pointed out in the classical treatise on the Law of Attachment by Chief Justice Drake (sections 223, 413, 428), although there has been some divergence of judicial opinion, the preponderance of decisions is in favour of the view that the reversal of the judgment in favour of the defendant does not by itself revive the attachment. It has been ruled that a judgment in favour of the defendant, whether for default of the plaintiff or upon the merits, dissolves the attachment, and the subsequent reversal of the judgment does not restore the uninterrupted operation of the attachment. Brown v. Harris (1850) 2 Greene 505 and the notes to Franklin Bank v. Bachelder (1843) 39 Am. Dec. 601 at p. 609 : 23 Maine 60. As was observed in Moloy v. Orton (1890) 42 Fed. Rep. 513 the purpose of attaching the property and of keeping it in the custody of the law, is to have it forthcoming and available to answer any judgment the plaintiff may recover in the action; it is, therefore, unreasonable to suppose that when the law provides that upon dismissal of the suit, the attachment should be cancelled, the Legislature could ever have intended that the lien of the attachment should nevertheless continue as though it had been kept alive by an order of Court, during the pendency of the appeal, to answer any judgment the plaintiff might finally recover. In some of the American States, however, there is statutory provision to the effect that if the unsuccessful plaintiff perfects his appeal within a prescribed period and files a security-bond, the effect is to prevent the dissolution of the attachment which would otherwise be caused by judgment in favour of the defendant. Jaffray v. Claflin (1893) 119 Missouri 117 : 24 S.W. 761. But even in such cases, it is provided that though the effect of the dissolution is thus suspended, and upon a reversal of the judgment in a higher Court the plaintiff is restored to his original rights under the attachment, he cannot thereby prejudice the position of third parties who may have acquired a right in the property between the date of dismissal of the suit and the date when the appeal is perfected (Encyclopedia of English and American Law, Vol. III, page 231 and Cyclopedia of Law, Vol. V, page 625). There is in this country, however, no such statutory provision. It appears to us to be reasonably plain that the effect of Section 488 of the Code of 1882 is to make it obligatory upon the Court to withdraw the attachment as soon as the suit has been dismissed; and that neither upon the statutory provisions nor upon principle can the attachment be treated to have been revived as the result of reversal of the judgment by the Court of Appeal, in any event, not to the prejudice of third parties who may have acquired rights in the property. In the case before us, we must consequently hold that the order of the 22nd October, 1906, by which the attachment was withdrawn, is still in force; in other words, that the decree-holders are not entitled to bring the properties to sale without a fresh attachment thereof.

3. It has been argued, however, by the learned Vakil for the decree-holders, that the petitioner has no locus standi in this matter, because if, according to her case, there is no subsisting attachment, it is incompetent to her to prefer a claim under, Rule 58 of Order XXI of the Code of 1908. This objection is manifestly fallacious, for even if it be conceded for a moment that Rule 58 pre-supposes an attachment to which objection is made, it is clear that a Court is not competent to sell a property which has not been previously attached. Consequently, if a Court is invited by a decree, holder to sell property which has not, as a matter of fact, been duly attached, and the Court is apprised of this circumstance by a person claiming to be interested therein, the Court has inherent power:to investigate the matter; indeed, it is its duty to guard against a possible abuse of its process. The learned Vakil for the decree-holders has, however, contended that a sale of property, which has not been attached, is not void but merely voidable on the ground of material irregularity, and that consequently the decree-holders ought to be permitted to sell the dispute properties at their own risk. It may be conceded that when a sale of immoveable property has actually taken place and its validity is impeached on the ground that it was not attached, the absence of attachment does not, by itself, vitiate the sale. Kishory Mohan Boy v. Mahomed Muzaffar Hossein 18 C. 188; Tasudduk Rasul v. Ahmed Hossein 20 I.A. 176 : 21 C. 66; Tincouri Debya v. Shib Chandra Pal 21 C. 639 and Sheodhyan v. Bholanath 21 A. 311. Bat the position is entirely different when objection is taken to the legality of the proceedings before the sale has taken place. The position cannot be maintained on any intelligible ground, that though a Court is apprised, before the sale, of the circumstance that no writ of attachment has been served, it should, nevertheless, proceed to sell the property and leave the parties to litigate about the legality of the sale at a subsequent stage of the proceedings. The plain duty of the Court, under such circumstances, is to ensure compliance with the provisions of the Code when there is still ample time left for necessary action.

4. The result, therefore, is that this Rule must be made absolute and the order of the Court below discharged. The decree-holders will be called upon to attach the disputed properties in accordance with law if they desire to bring them to sale. It will, then be open to the present petitioner to prefer a claim or take objection to the attachment under Rule 58 of Order XXI of the Code of 1908, on the ground that the share of Raja Padmananda had been validly transferred to his son, the husband of the petitioner, under the conveyance of the 26th September, 1905. If such claim is preferred it must be duly investigated in the manner prescribed by the Code. The petitioner is entitled to her costs both here and in the Court below. We assess the hearing fee at five gold mohurs.


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