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Bharat Chandra Pal Vs. Gouranga Chandra Pal and anr. - Court Judgment

LegalCrystal Citation
Decided On
Reported inAIR1927Cal885
AppellantBharat Chandra Pal
RespondentGouranga Chandra Pal and anr.
Cases ReferredCourt Satya Charan Mukherji v. Madhab Chunder Karmokar
- .....right in holding that the plaintiff was entitled to no relief in this suit, and the subordinate judge's order reversing the munsif's judgment is erroneous and is set aside.7. the appeal is allowed and the munsif's decree is restored with costs of this court as also those of the lower appellate court.cuming, j.8. i agree.

Cammiade, J.

1. The facts of the present case are as follows : The plaintiff, who is the respondent before this Court, sued one Shuramani and another on a bond in the year 1916 and he obtained an order for attachment before judgment of a raiyati holding belonging to Shuramani. The order which was recorded by the learned Munsif in that case was as follows:

On the application of the plaintiff, supported by an affidavit, I am satisfied that the defendants are about to transfer their properties with a view to defraud the plaintiff. It is, therefore, ordered that notice be issued upon the defendants to show cause within seven days from the service thereof why they should not furnish security for money. In the meantime I also order conditional attachment of the immovable properties mentioned in the plaintiff's application.

2. The order was issued to the peon in form No. 5 of Appendix F, directing the peon, in case securities were not given, to attach the properties. Nothing further was done. Subsequently the defendant in that suit, Shuramani, sold the tenancy to the defendant of the present suit. This was in the year 1920, and in the year 1921 the plaintiff brought the tenancy to sale in execution of his own decree, and, having purchased it, he sued for a declaration of his title and for recovery of possession.

3. The learned Munsif who tried the suit dismissed it holding that there had been no legal attachment and that, therefore, Section 64, Civil P.C. could not operate to nullify, as against the decree-holder, the transfer that had been made. The plaintiff appealed to the District Court. The learned Subordinate Judge who heard the appeal reversed the decree of the Munsif.

4. The only question, therefore, in the case is whether or not there was a proper attachment before judgment. Attachments before judgment are dealt with in Order 38, Rules 5 to 7, of the Code. Rule 5 states in what circumstance? the Court may call upon the defendant to furnish security and at the same time make a conditional attachment of the property specified by the plaintiff. We are not concerned with Rule 6, as no action was taken under that section. But Rule 7 is relevant because it is the rule which lays flown the manner in which attachments are to be effected. That rule states as follows:

Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.

5. As there is no express provision on the subject in any of the rules relating to attachment before judgment such attachments are governed by the provisions of Order 21, Rule 54, which relates to attachment of immovable properties in execution of decrees. According to thing rule, where immovable property is to be attached, the Court is to pass an order on the judgment-debtor prohibiting him from. transferring the property or making any charge thereon and on all persons from taking any benefit from such transfer or charge, and further it provides that such order shall be proclaimed on the property or in its neighbourhood by beat of drum or other customary mode and that a copy of such order shall be affixed on some conspicuous part of the property and also in a conspicuous part of the Court-house. Now, in the present case, no prohibitory order was given to the peon to publish. The prohibitory order contemplated by Order 21, Rule 54, is to be found in Appendix E, form No. 24. No notice in that form was given to the peon to publish. According to the evidence of the peon what he did was to go to the locality and to proclaim by beat of drum that the property was attached, and affixed on the property which he was directed to attach a copy of the order which was made over to him, namely an order in form No. 5 of Appendix F. This was clearly not a compliance with the provisions of Rule 54, Order 21. In a previous case of this Court Satya Charan Mukherji v. Madhab Chunder Karmokar [1905] 9 C.W.N. 693, where the peon was given a proper prohibitory order to publish, and no such-order was published in the Court-house-as required by the rule, it was held that there had been no legal attachment. The present case is much stronger as no prohibitory order was published at all. Therefore there was no legal attachment.

6. The learned Munsif was right in holding that the plaintiff was entitled to no relief in this suit, and the Subordinate Judge's order reversing the Munsif's judgment is erroneous and is set aside.

7. The appeal is allowed and the Munsif's decree is restored with costs of this Court as also those of the lower appellate Court.

Cuming, J.

8. I agree.

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