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CASE NO.:
Appeal (civil) 4394 of 1991
PETITIONER:
RAJENDER SINGH
RESPONDENT:
RAMDHAR SINGH AND ORS.
DATE OF JUDGMENT: 11/05/2001
BENCH:
UMESH C. BANERJEE & K.G. BALAKRJSHNAN
JUDGMENT:
JUDGMENT
2001 (3) SCR 736
The Judgment of the Court was delivered by
BALAKRISHNAN,,I. This appeal is directed against the order passed n Civil
Revision No, 1208/87 by the High Court of Judicature at Patna. The
Dlaintiff-appellant herein filed Money Suit no. 13 of 1974 before the Subordinate Judge’s Court, Biharsharif. On 26.3.1974, the plaintiff obtained
an order of attachment before judgment in respect of certain properties of
defendant situated within the local jurisdiction of Sub-ordinate Judge,
Jehanabad. The attachment order was sent directly to Sub-ordinate Judge.
Jehanabad on 27,3.1974 and it was served on the defendant in the suit on
3L3.1974. The defendant remained ex-parte and the suit was decreed on
11.10.1974. The plaintiff-decree hold sent the decree for execution to the
Court of Sub-ordinate Judge, Jehanabad, On 25.8.1976, a fresh order of
attachment of the properties was made by the executing court and the
properties were sold through court auction on 19.1 1.1977. The decree
holder himself purchased the attached property for a sum of Rs. 5996.38.
The properties were having an extent of about 5. acres’. The respondents
herein filed a Miscellaneous Case on 19:11.1977 contending that they had
purchased the disputed properties from the judgment debtor on 27.4.1974:
According to the respondents, they had purchased these disputed properties
under three registered sale deeds dated 27.4.1974 & 7.9.1974 for a total
sum of Rs. 47,000, They had also alleged that prior to the sale deeds,
there were two deeds of Baibeyana (Agreement to sell) dated 9.2.1974 and
16.2.1974 respectively. The respondents contended that there was no proper
attachment of these properties arid the auction of the properties was held
illegally and they prayed that the lands be released from attachment. The
Miscellaneous case no. 28 of 1977 fifed by them was rejected by the
Execution Court and aggrieved by the same, they filed Revision Petition No.
1208 of 1987 before the High Court,
The respondents contended that the attachment before judgment obtained by
the decree holder-appellant was not in accordance with Section 136 of Civil
Procedure Code, They also contended that the decree holder had purchased
the property without obtaining previous sanction of the Court and
therefore, the sale in his favour was illegal They had further contended
that the two agreements for sale were prior to the attachment obtained by
the plaintiff and, therefore, the subsequent attachment wilt not prevail
over the sale deeds executed pursuant to the agreements for sale. This plea
was not considered on merits by the High Court. The High Court accepted the
plea of the respondents regarding non-compliance of Section 136 6f the
Civil Procedure Code. The High Court held that the attachment order was not
sent through the District Judge, Gaya within worse territorial
jurisdiction, the Subordinate Judge’s Court, Jehanabad, and the attached
properties were situate. The High Court accepted this plea and held that:
as the attachment before judgment was not sent through the District Judge,
Gaya, within whose territorial Jurisdiction the attached property washttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6
situate, the same was ineffective and that warrant of attachment being
ineffective, subsequent alienations, by the judgment-debtor were valid
transactions and the purchasers obtained valid title. In that view of the
matter, the auction sale was set aside and the revision application filed
by the respondents was allowed. Aggrieved by the same, the present appeal
is ..filed.
The question that arises for consideration is whether the Court, which
passes an order of attachment in respect of properties situated within the
jurisdiction of another Court, can directly send the order of attachment to
that Court or it should always endorse the order of attachment to the
District Court within the local limits of whose jurisdiction the attached
property is situate. Attachment before Judgment is effected under Order
XXXVIII Rule 5 of the Code of Civil Procedure. Rule 7 of Order XXX VI11
provides the mode of making attachment. It says as under ;
"Save as otherwise expressly provided, the attachment shall be made in the
manner provided for the attachment of property in execution of a decree.1’
Section 136 prescribes the procedure to be followed where a person to be
arrested or property to be attached is outside the district. The relevant
portion of the Section reads as follows :-
"(1) Where an application is made that any person shall be arrested or that
any property shall be attached under any provision of this Code not
relating to the execution of decrees, and such person resides or such
property is situate outside the local limits of the jurisdiction of the
Court to which the application is made, the Court may, in its discretion,
issue a warrant of arrest or make an order of attachment, and send to the
District Court within the local limits of whose jurisdiction such person of
property resides or is situate a copy of the warrant or order, together
with the probable amount of the costs of the arrest or attachment.
2. The District Court shall, on receipt of such copy and amount, cause the
arrest or attachment to be made by its own officers, or by a Court
subordinate to itself, and shall inform the Court which issued or made such
warrant or order of the arrest or attachment.
3. XXXX
4.XXXX"
(Emphasis added)
From the above provision, it is clear that for effecting attachment of
property situated outside the local limits of a Civil Court, the mode
prescribed is that the order of attachment shall be sent to the District
Court within the local limits of whose jurisdiction the property is situate
and the District Court thereafter shall send the order of attachment to the
subordinate Court within whose jurisdiction the property is situated for
effecting the attachment.
The validity of the attachment order issued not in accordance with the
procedure prescribed under Section 136 Civil Procedure Code was considered
by different High Courts and different views have been taken on this
matter:
In Mariaimma Mathew v. lttoop Paulo, AIR (1952) Travancore-Cochin 159, the
full Bench of the Travancore-Cochin High Court held that the procedure
prescribed under Section 136 Civil Procedure Code is not mandatory so long
as the Court effecting the attachment has jurisdiction over the subjectmatter of attachment. In that case, one Munsif Court issued an order of
attachment in respect of 12 items of immovable properties out of which 11
items were situated within the jurisdiction of another Munsif Court The
attachment order and the connected papers were sent directly to the Munsif
Court within whose jurisdiction the property was situated. When thehttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6
plaintiff took steps to execute the decree by the sale of the attached
properties, the alienees who had purchased the properties from the judgment
debtor raised an objection to the effect that the attachment effected was
not valid, inasmuch as the order of attachment was not sent through the
District Court as enjoined by Section 101 of Travancore Civil Procedure
Code. Section 101 of the Travancore Civil Procedure Code is in part materia
with Section 136 of Civil Procedure Code, 1908. The Court after
elaboratedly considering the question held as under :
"The question is, when an order of attachment before judgment of properties
situated within the jurisdiction of one Court is made by another Court, the
provision in Section 101 to send the order of attachment to the District
Court within the local limits of whose jurisdiction the properties sought
to be attached are situated is only a mode of procedure prescribed or
whether the jurisdiction of the Court effecting the attachment will depend
upon the District Court’s order in that behalf. Our considered view is that
the provision is only a procedural one and that so long as the Court
effecting the attachment has jurisdiction over the subject-matter or
attachment non-compliance with the provision in Section 101 can only amount
to an irregularity.
Sub-section 2 of Section 101 shows that when an order for attachment
before judgment passed by a Court is sent to the District Court, the latter
Court is bound to carry out the order itself or through a Court subordinate
to it. The only function of the District Court to which the order of
attachment is sent or of a Court subordinate to it which the District Court
might sent it is only to carry out the order and complete the formalities
of attachment, It other words, Section 101 prescribes the procedure, it
does not touch the jurisdiction,"
In Mookan Ouseph Thamakutty v. Puramundekat Padinjare Madathil Nanu, AIR
(1963) Kerala 193, a Single judge of the High Court followed Mariamma
Mathew v. Ittoop Poulo, AIR (1952) Travancore Cochin 159 and held that
Section 136 Civil Procedure Code prescribes only a procedure and does not
confer jurisdiction on the Court, which effects the attachment. The noncompliance of that procedure being only a procedural defect, may be waived
if no objection is taken and it does not invalidate the attachment itself.
ln Bansropan Singh and Others v. Emperor, AIR (1937) Patna 603, the warrant
of arrest Was issued by Munsif of Korimako for arresting a judgment debtor
for recovery of money. As the judgment debtor was evading arrest, the Civil
Court peon alongwith three police constables approached the house of the
judgment debtor and the peon informed that he had a warrant of arrest
against the judgment debtor. The person who was found in the house of the
judgment debtor tried to run away but the peon Caught him. He cried for
help and the judgment debtor came out of the house and wounded the police
constable with a dagger. The question arose whether the warrant issued by
the Munsif Court, Kohima was valid. The judgment debtor was residing within
the jurisdiction of Munsif Court, Buxar. It was contended that as the
warrant was not endorsed to the District Court and as the warrant had to be
executed outside the jurisdiction of the issuing court, it was not validity
issued. Under that circumstances, the Court held that when a Court
exercises the extraordinary powers conferred oil it by Section 136, Civil
PX., the provisions--of that section must be strictly observed; arid the
warrant must be endorsed to the District Court outside the jurisdiction of
the issuing Court in which the warrant is to be executed. The warrant
against judgment debtor was therefore held to be defective,
In another case reported in AIR (1963) Allahabad 320,Haji Pahim Bux and
Sons and Others v, Firm Samiullah find Sons a decree holder had obtained
order of attachment before judgment. After the decree, he applied for
execution thereof by sale of the property attached. The sale was notified
and in the meantime, an objection was raised that the attachment of the
property made before judgment was invalid and that the property could not
be sold. The sale was adjourned and as there was no stay, the property washttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6
actually sold and the objection filed by the appellants came up for
consideration later. The objection was dismissed and in the appeal, the
High Court held that as the attachment was not in accordance with Section
136 of the Code of Civil Procedure, it was invalid. The Court held in
paragraph 9 at page 323 as under:
"A plain reading of these two sub-sections will show that where the
property to be attached is situate outside the local limits of the
jurisdiction of the Court to which an application for the purpose is made,
an order of attachment has to be sent to the District Court within the
local limits of whose jurisdiction the property is situate together with
the probable amount of the costs of the attachment. On receipt of the order
of attachment, the District Court may cause the attachment to be made by
its own officers or by a Court subordinate to it. Primarily, therefore,
jurisdiction to make an attachment on the authority of a precept received
from an outside Court vests in the District Court. A Court subordinate to
the District Court may attach the property in compliance with the order of
attachment received but that would be possible only if the District Court
requires it to do so. It is the District Court, which has jurisdiction to
cause the attachment ’to- be made by its own officers or by a Court
subordinate to itself. In the absence of a direction of the District Court
to that effect, therefore, any attachment, which may be made by a
subordinate Court in pursuance of a precept received from a Court in
another district would be without jurisdiction and consequently void." the
Counsel for the appellant: contended that the views taken by the Allahabad
High Court and Patna High Court are not correct. In the above two
decisions, the Court had held that when the property to be attached is
situate outside the local jurisdiction of the Court to which an application
for the purpose is made, an order of attachment has to be sent to the
District Court within the local limits of whose jurisdiction, the property
is situate, and it is the District Court which may cause the attachment of
the property and, therefore, the attachment order passed by the issuing
Court without sending the papers to the District Court is invalid and
defective. Though, in Section 136 of the Civil Procedure Code, it is stated
that the District Court shall, on receipt of the order of attachment or
order of arrest as the case may be, cause the attachment or arrest to be
made by its own officers or by a Court subordinate to itself, in effect,
the order is as such not passed by the District Court. The Court which
passes the attachment before judgment passes the same under Order XXX VIII
Rule 5 of the Code. The said rule gives authority to the Court to pass
attachment before judgment after being satisfied by affidavit or otherwise,
that the defendant, with intent to obstruct or delay the execution of any
decree that may be passed against him may try to dispose of the property.
Before issuing such order of attachment, the Court must satisfy itself that
the, defendant is about to dispose of the whole or any part Of his
property, or is about to remove the whole or any part of his property from
the local limits of the: jurisdiction of the Court.
It is only on the satisfaction of these conditions, the Court can pass an
order of attachment under Order XXXVIII Rule 5. Rule 7 of Order XXX VIII
says that such attachment shall be made in the manner provided for the
attachment of the property in execution of a decree.
Section 136 of the Code of Civil Procedure lays down the procedure to be
followed where the person to be arrested or property to be attached is
outside the District Court which passes the order of arrest or attachment.
Section 136 only lays down the procedure in case the property is situate
outside the territorial jurisdiction of the Court. The District Court to
which such order of attachment is sent is only effecting the attachment and
the power under Order XXXVIII Rule 5 is not as such exercised by that
Court.
In MG. Brothers v. Shah Talchand Parswachand & Co., AIR (1963) Mys. 147. it
was held that the Court passing the order of attachment has got the power
to raise the attachment. In that case, a warrant was issued under Sectionhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6
136 of the Code by the Subordinate Judge, Kunoor to the District Court,
Bellary in which a lorry was attached, and a claim was preferred before the
District Judge and he made an order raising the attachment on the claimant
furnishing security. The High Court held that the Court which could hear
the claim was the Court which made the order of attachment and not the
Court which actually effected the attachment.
The order of attachment is sent to the District Court when the property is
situate outside the jurisdiction of the issuing authority. It is only to
maintain the comity of Courts as. in some cases, the attachment order mignt
be issued by the Munsif ’Civil Judge (Junior Division) and the property to
be attached might be within the jurisdiction of the Civil Judge (Senior
Division)/ \007Subordinate Judge arid in the fitness of things. Section 136
lays down the procedure (hat under such circumstances, the order of
attachment should be sent to the District Court which is having supervisory
jurisdiction over all the subordinate Courts within that district- It is
only a procedure and if the owner of the property raised an objection to
the effect that the procedure was not complied with, Court can issue
appropriate direction to cure the defect in the procedure. If such an
objection was not raised within a reasonable time, we do hot think that the
attachment order itself could be treated as invalid.
It is also pertinent to note that by the Amending Act of 1976, a new sub
rule was added to Rule 5 of Order XXX VIII to the effect that if an order
of attachment is made without complying with the provisions of sub-rule (1)
of the said rule, such attachment shall be void. Therefore, the importance
is given to the mandatory conditions under Rule 5(1) of Order XXXVIII and
we do not find any such similar insertion in Section 136. Therefore, the
failure, if any, on the part of the Court which issued the attachment order
in sending the attachment order and the connected papers to the District
Court will not invalidate the attachment order as such. Therefore, the
learned Single Judge of the High Court was not correct in holding that the
attachment order passed by the Subordinate Judge, Biharsharif was invalid.
The other ground for setting aside the same is the inadequacy of the price.
The respondents have not alleged any fraud or material irregularity in the
conduct of the Court’s auction sale, whereby they suffered injustice. Mere
inadequacy of the price is not a ground for setting aside the Court sale,
That finding of the learned Judge also is not sustainable in law.
The respondents had also urged another ground to set aside the same,
namely, that there were two deeds of Baibeyana ( Agreements to sell), one
on 9.2.1974 and another on 16.2.1974 prior to the date of attachment,
namely, 6.3.1974. The respondents had contended before the Execution Court
that these agreements should prevail over the attachment but this plea was
rejected by the Subordinate Judge on the ground that the attachment does
prevail over the pre-existing contract to sell even though the attaching
creditor has ho notice of a contract to sell. The very same plea was
advanced before the learned Single Judge of the High Court but the same was
not considered as the decision was taken in the matter having regard to
non-compliance of Section 136 of the Code of Civil Procedure and the
learned Single Judge felt that it was not necessary for him, in this case,
to consider that plea.
As we have taken a contrary view regarding Section 136, the matter has to
go back to the learned Single Judge to consider the plea raised by the
respondents regarding the two agreements allegedly executed by them. It may
be noted that as regards the question whether the agreement entered into by
the judgment debtor prior to the attachment of property in execution of a
decree would prevail over the attachment itself, was considered by this
Court in Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakrishnan
and another, [1990] 3 SCC 291 and this Court approved the views expressed
in Paparaju Veeraraghavayya v. Killaru Kamala Devi. AIR (1935) Mad; 193;
Veerappa Thevar v.. C.S Venkatarama Aiyar, AIR (1935) Mad. 872 and Angu
Pillai v. M.S.M, Kasiviswanthan Chettiar, AIR (1974) Mad. 16 followed byhttp://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6
Rango Ramachandra Kulkarni v. Gurlingappa Chinnappa Muthal, AIR (1941) 198;
Yesvant Shatikar Dunakhe V. Pyaraji Nurji Tambol, AIR (1943) Bom 145 and
Kochuponchi Varughese v. Ouseph Lonan, AIR (1952) TC 467 and held that the
agreement for sale creates an obligation attached to the ownership of
property and since the attaching creditor is entitled to attach only the
right, title and interest of the judgement debtor, the attachment cannot be
free from the obligations incurred under the contract for sale.
It is for the learned Single Judge to consider these aspects having regard
to the nature of the agreements alleged to have been executed by the
respondents on 9,2.1974 and 162.1974,
As the learned Single Judge has not considered the questions raised by the
respondents regarding the two agreements and their effect on the
attachment, the matter has to go back to High Court to be considered afresh
subject to the observation made by us above. It is ordered accordingly.
As this litigation has been protracted and delayed, the learned Single
Judge before whom the matter comes up for decision is requested to dispose
of the same at an early date.
The appeal stands disposed of accordingly. Parties to tear their respective
costs.
