JUDGMENT
1. The observations of the learned Judge that the purchaser in this case (3rd respondent) had no notice of the attachment by the Court of the Subordinate Judge appears to have been made inadvertently and is not based on any finding that we can discover in the judgments of either of the lower Courts.
2. We must call for a finding on this issue,
Was 3rd respondent at the time of his purchase at Court auction aware of the existence of an attachment of the Court of the Subordinate Judge on the property sold.
3. The District Judge will take evidence on this point and return a finding in two months. Seven days will be allowed for filing objections.
[In compliance with the order contained in the above judgment, the District Judge of South Malabar submitted a finding in the affirmative on the issue.]
4. The property in dispute was attached by the Court of the Subordinate Judge of Calicut. While the attachment was subsisting, the District Munsif of Manjeri in exeeution of a decree of the Court of the Principal District Munsif of Calicut attached the same property and brought it to sale. The respondent was the purchaser. An application was made by the Subordinate Judge’s Court decree-holder to set aside the sale. The Courts below upheld the sale. In this Court, Mr. Justice Frinivasa Aiyangar took the same view. Hence the Letters Patent Appeal.
5. We think that the language of the 2nd clause of Section 63 of the Code of Civil Procedure 1908 leaves no room for doubt that the legislature intended to hold that the sale is valid.
6. Before the Act of 1908 the decisions were to this effect. It was held in Calcutta (Gopi Chand Bothra v. Kasimunnessa Khatun (1907) I.L.R. 34 C. 836) that the sale held in contravention of the provisions of Section 285 of Act XIV of 1882 was not a nullity. Ear Prasad v. Jagan Lal (1904) I.L.R. 27 A. 56 took the opposite view. In Kunhayan v. Ithukutti (1898) I.L.R. 22 M. 295 and in Abdul Karim v. Thakordas (1898) I.L.R. 22 B. 88 an intermediate view was taken to the effect that if the purchaser took the property with knowledge that an attachment by a superior Court was subsisting, his sale should be set aside. In this state of the authorities the legislature has said ” nothing in this section shall invalidate any proceeding taken by a Court executing one of such decrees.” In our opinion, this language is intended to give legislative sanction to the view taken in Calcutta. Of course, if any question of fraud arises, the protection would be of no avail. In the absence of fraud, each decree-holder is entitled to proceed with the execution of his decree. The legislature has enacted for the convenience of the various decree-holders that the Court which shall deal with the assets shall be the superior Court. It is clear that the other Court has also jurisdiction to carry into effect proceedings in execution of its own decrees. Consequently, the direction for investing the superior Court with power to distribute the assets seems to be directory and not mandatory. In this view, the proceedings of the inferior Court should not be regarded as illegal and without jurisdiction.
7. We must therefore hold, that the sale to the respondent was not invalid and that the Courts below were right. We affirm the decision of the learned Judge and dismiss the appeal with costs.
