{"id":39058,"date":"1952-09-17T00:00:00","date_gmt":"1952-09-16T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/jagannath-prasad-vs-mahabir-ram-kumar-and-anr-on-17-september-1952"},"modified":"2015-12-20T09:27:03","modified_gmt":"2015-12-20T03:57:03","slug":"jagannath-prasad-vs-mahabir-ram-kumar-and-anr-on-17-september-1952","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/jagannath-prasad-vs-mahabir-ram-kumar-and-anr-on-17-september-1952","title":{"rendered":"Jagannath Prasad vs Mahabir Ram Kumar And Anr. on 17 September, 1952"},"content":{"rendered":"
Patna High Court<\/div>\n
Jagannath Prasad vs Mahabir Ram Kumar And Anr. on 17 September, 1952<\/div>\n
Equivalent citations: AIR 1955 Pat 231, 1954 (2) BLJR 444<\/div>\n
Author: Choudhary<\/div>\n
Bench: Sinha, Choudhary<\/div>\n<\/p>\n
<\/pre>\n
JUDGMENT<\/p>\n
Choudhary,  J.  <\/p>\n
1. This is an application in revision by the plaintiff and is directed against an order of the Munsif of Jamshedpur dated 17-9-1952, whereby he allowed the claim of Lukhia Kumarin, opposite party 2, and released certain property from attachment.\n<\/p>\n
 2. The petitioner filed a money suit, No. 534 of 1951, on the basis of a handnote, on 22-9-1951, and, on the same date, filed an application for attachment before judgment of a house, belonging to the defendant, under the provisions of Order 38, Civil P. C. The learned Munsif issued rule on that application, and passed an ad interim order of attachment. The attachment, however, was actually effected on the spot on 25-9-1951, but a day earlier, that is, on 24th September, the defendant, who is opposite party 1 in this case, executed a sale deed in favour of opposite party 2, who is his sister. She objected to the attachment and preferred a claim on 10-4-1952. Both parties adduced evidence in the case, and on consideration of the evidence, the learned Munsif came to the conclusion that the claimant was possessed of the house property in her own right on the date of the attachment. He, therefore, allowed the application and released the house from attachment. Against that order the plaintiff has come up to this Court in revision.\n<\/p>\n
 3. The question that arises to be considered in this case is whether an attachment of a property becomes effective from the date on which the order for attachment is passed, or from the date when the attachment is actually effected on the spot. The case came up for hearing before a single Judge, but in view of the question raised as stated above, it was referred to a larger Bench.\n<\/p>\n
 4. Mr. B. C. De, on behalf of the petitioner, has contended that the order of attachment having been passed on 22-9-1951, that is, before the sale deed was executed in favour of opposite party 2, the sale was void inasmuch as the attachment became effective from the very date of the order and not from the date When the attachment was actually made. In support of his contention, he has placed reliance on the case of –‘Venkatasubbiah v. Venkata Seshaiya’, AIR 1919 Mad 752 (A). In that case, an order for attachment before judgment was made, but it was actually effected after the decree was passed in the suit. It was contended that, since the attachment was completed after the decree in the suit was passed; there wag no attachment before judgment, and the attachment made subsequent to the passing of the decree was invalid. This contention was rejected. In rejecting that contention their Lordships made certain observations and Mr. De has based his argument on those observations. Phillips J. observed:\n<\/p>\n
  “It seems to me that when a Court makes an order under Order 38, Rule 6, C. P. C. that order cannot be deprived of all force by the mere failure of the executive officers of the Court to carry it Out before the decree is passed. The attachment when effected is an attachment made in pursuance of an order to attach before judgment and must be treated as an attachment before judgment and not as a nullity merely because, as a matter of fact, the attachment is not completed until after judgment. To adopt the opposite view would be to allow a formal judicial order to be upset by the negligence or default Of a subordinate ministerial officer.”\n<\/p>\n
 Kumaraswami Sastri J. observed:\n<\/p>\n
  “Any delay of the officers of Court in effecting the attachment should   not prejudice   the  decree-holder   and the   validity   of the order   of attachment under Rule  5, Order  38, should not depend on the date when it is actually effected.”\n<\/p>\n
 5. The argument of Mr. De is that the above observations  of their   Lordships  indicate   clearly that an order passed by a Court becomes effective from   the date   when it is   passed and   not when the formalities, which have to be observed in carrying out that order,  are actually performed. It is, therefore, contended by him that in the present case   the attachment   would   take   effect from 22-9-1951, when the order of attachment was passed and its effectiveness would not be postponed till the date when the attachment was actually made at the spot.\n<\/p>\n
 That argument, though attractive, seems to have no substance. The observations made by their Lordships referred to above were made with regard to the effect of the service of attachment before judgment made subsequent to the passing Of the decree. The point for consideration in that case was whether an attachment made in pursuance of an order of attachment before judgment subsequent to the passing of a decree can have the effect of an attachment before judgment. The question, whether the attachment takes effect actually from the date of the attachment or the date of the order itself, did not arise to be considered in that case, and therefore, in my opinion, that case cannot be an authority for the point that falls to be considered in the present case.\n<\/p>\n
 There is, however,  an indication   in  that   case also that the attachment becomes effective when it  is   actually   made,  as   will   appear   from   the following observation of Kumaraswami Sastri J. :\n<\/p>\n
   “I am of opinion   that an attachment   ordered before judgment invalidates an alienation made after the property is actually attached in pursuance of   the order   even though the   actual<\/p>\n
attachment was made after the passing of the decree.”\n<\/p>\n
 6. Exactly the same question which we have to consider arose in — ‘Sinnappan v. Arunachalam Pillai’, AIR 1920 Mad 804 (FB) (B), a Full Bench decision of the Madras High Court. In that case, as in the present case, the judgment-debtor had transferred the property, which was the. subject-matter of attachment after the order of attachment was. passed, but before the attachment was actually effected by means of the proclamation and affixture of notice of the attachment. It was contended in that case also that the attachment would have the effect from the date of the order itself, and in support of that contention the case of AIR 1919 Mad 752 (A) referred to above was cited. The same argument, as has been advanced before us, was advanced in that case also. Abdur Rahim, Offg. C. J., who delivered the leading judgment, distinguished the case of AIR 1919 Mad 752 (A) and observed as follows :\n<\/p>\n
  “That  was a case of attachment before judgment and the question for consideration was whether, where an order for attachment was made before judgment and the attachment was not actually made until after the decree, that was a valid attachment. They hold that it was a valid attachment, and, in so holding certain general expressions were used in the course of the judgment which have been seized upon by Mr. Jayaram Ayyar in support of his argument. The general observations ought to be read in connection with the point which the learned Judges had before them, and, if so read, they cannot be said, in any way, to countenance the construction contended for on behalf of the appellant.”\n<\/p>\n
 Seshagiri Ayyar J. in his concurring judgment distinguished AIR 1919 Mad 752 (A) as follows:\n<\/p>\n
   “The question before them was whether an order for attachment which was made before the decree was passed had spent itself out as it had not been effectuated  by doing the acts enjoined before the passing of the decree … .. That is not the point we are concerned with. Apart from that point, the learned Judges have expressed themselves in no uncertain terms on the question we have to decide; they say that until the order has been proclaimed, there can be no attachment, and, to that extent are, therefore, in agreement with the view taken in — ‘Ramanayakudu v. Pedda Basappa’, AIR 1919 Mad 594 (C).”\n<\/p>\n
 It may be noted that in AIR 1919 Mad 594 (C), a Division Bench of the Madras High Court has held that an attachment of land which is only ordered but not communicated to the judgment-debtor bv the issue of a prohibitory order under Order 21, Rule 54, Civil P. C., does not affect an alienation made before the judgment-debtor has knowledge of the prohibitory order.\n<\/p>\n
 7. In this connection, the decision of their Lordships of the Privy Council in — ‘Muthiah Chetti v. Palaniappa Chetti’, AIR. 1928 PC 139 (D) is also important. In that case, the point under consideration was whether the suit was barred under Article 11, Limitation Act. Lord Shaw,<\/p>\n
who delivered the judgment of the Board, Observed;\n<\/p>\n
  “In view of these provisions the Board listened with some surprise to a protracted argument which culminated in the proposition that a property was in law attached whenever an order for attachment was made. The result, if this were so, would be that a person holding an order could dispense with attachment altogether, as an operation or a fact. Their Lordships need not repeat in another form these propositions. The order is one thing, the attachment is another. No property can be declared to be attached unless first the order for attachment has been Issued, and secondly in execution of that order the other things prescribed by the rules in the Code have been done.”\n<\/p>\n
 in my opinion, therefore, the law is clear that attachment, to be effective, must be actually served on the spot, and its effect begins from the date of the service and not from the date of the order.\n<\/p>\n
 8. Mr. De has placed before us the Special Bench decision in — ‘Liakat Mian v. Padampat Slnghania’, AIR 1951 Pat 130 (SB) (E). In that case, the question to be determined was as to when an order under Order 41, Rule 5, Civil P. C., passed by an appellate Court becomes operative; whether it operates from the moment it is passed or only after communication to the subordinate Court. The majority decision in that case was that an order of stay under Order 41, Rule 5, passed by an appellate Court staying execution of the decree appealed from becomes operative from the moment it is made and not after communication to the subordinate Court. Mr. De has contended that the effect of the Special Bench decision of this Court is that an order becomes effective from the date on which it is passed and not when it is actually communicated or proclaimed. I do not think that this case has laid down such a wide proposition of law. In that case, their Lordships had to consider the provision of Order 41, Rule 5, Civil P. C., which did not provide for an order directed to anybody. Reuben J. (as he then was) observed:\n<\/p>\n
  “It is noticeable that this rule does not provide for an order directed to anybody. It empowers the appellate Court in absolute terms to stay execution. It does not specify any person or Court to whom the order is to be communicated. In the absence of any provision or direction to the contrary an order of a Court must be taken to operate from the moment when it is made.”\n<\/p>\n
 His Lordship further observed:\n<\/p>\n
  “It follows that from the moment the stay order is passed the executing Court is deprived of the power of executing the decree and any action taken by it in execution of the decree would be without jurisdiction.”\n<\/p>\n
 Ramaswami J. who agreed with Reuben J. observed as follows :\n<\/p>\n
  “The terms of the Statutory Rule — Order 41, Rule 5, are absolute, and, as a matter of construction I hold that the Jurisdiction of the Court executing the decree is superseded from the moment the stay order is passed by the appellate
\nCourt.”\n<\/p>\n
 It is, therefore, clear that the majority decision of the Special Bench that the order passed by an appellate court staying an execution of a decree becomes operative from the moment it is made and not after communication to the subordinate Court was based on two very important principles, namely, (1) that the order was not one directed to anybody, and (2) that, since after the passing of the stay, the jurisdiction of the court executing the decree is superseded and any action taken by it in execution of the decree would be without jurisdiction. Those principles are not, however, applicable to the present case.\n<\/p>\n
 9. The provisions of Order 38, Rule 5, under which attachment before judgment is made are provisions whereby direction is given for attachment. It runs as follows :\n<\/p>\n
 “(1) Where, at any stage of a suit, the Court is
\nsatisfied, by affidavit or otherwise, that the defendant with intent to obstruct or delay the
\nexecution of any decree that may be passed
\nagainst him–\n<\/p>\n
 (a) is about to dispose of the whole or any part of his property, or  <\/p>\n
 (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,   <\/p>\n
 the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, on to appear and show cause why he should not furnish security.\n<\/p>\n
 (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.\n<\/p>\n
 (3)  The Court may also in the order direct the  conditional  attachment    of  the   whole  on any portion of the property so specified.” Rule 7 of that Order provides that save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree. The  provision for the mode of attachment in execution of a decree is made in Rule 54 of Order 21 of the Code which runs as follows:\n<\/p>\n
 “(1)   Where   the   property  is   immoveable,   the
\nattachment  shall be  made by an  order prohibiting the judgment-debtor from transferring or
\ncharging the property in any way, and all per
\nsons from taking any benefit from such transfer or charge.\n<\/p>\n
 (2)   The order shall be proclaimed   at some place on or adjacent to such property by beat of drum or other customary  mode, and a copy of the order shall be affixed on a conspicuous part of the property and then  upon a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government,  in the office of the Collector of the district in which the land is situate, and also<\/p>\n
where the property is situate within the cantonment limits, in the office of the local Cantonment Board and the Military Estates Officer concerned.”\n<\/p>\n
 10. These provisions, therefore, clearly indicate that the order of attachment is an order whereby the judgment-debtor and all other persons are directed not to deal with the property attached either by way of transferring or charging subsequent to the attachment. The object of attachment is to prevent the judgment-debtor from transferring or charging the property in any way and all persons from taking any benefit from such transfer or charge, and, in order to give notice to all such persons not to take any benefit thereunder, a provision for proclamation of the order of attachment has been made in Sub-rule (2) of Rule 54 of Order 21, and, unless the attachment is proclaimed in accordance therewith it is inconceivable to think that a mere
\norder passed  for attachment in a proceeding, to which the other persons are not parties, will have the effect of giving notice to all of them.        As  already  stated, the order of  attachment  is an order   in  the nature  of a   direction   and it cannot” be said to be effective unless it is brought to the notice of all concerned in the manner provided by law. The first principle adopted in  deciding the Special Bench case, therefore, does not apply to this case. The second principle, namely,    that subsequent to the passing   of the   order of stay of execution the executing Court ceases   to have any jurisdiction over the matter, has got no  application to this case.    In my opinion, therefore, the attachment operates only when it is actually made   and not   from the   date  when   the  order for attachment is made,  and it is only a  transfer   made subsequent   to the actual   attachment that is hit and not the one which has been made  prior – to  the  effecting   of   an   attachment though an order of attachment was passed earlier.\n<\/p>\n
 11. The next point urged by Mr. De is that the Court below has not decided the question of possession. Order 38, Rule 8 of the Code says that when any claim is preferred to property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for the payment of money. The provisions for such investigation is given in Order 21, Rule 58 of the Code and Rule 59 of that Order provides that the claimant or objector must adduce evidence to show that at the
\ndate of attachment he had some interest in, or was possessed of, the property attached. In the present case, the claimant has given evidence to show that she had an interest in the property as being a ‘bona fide’ purchaser for value and  the Court has accepted her evidence on that point and has held the sale deed to be genuine. Thus, there seems to be no merit in this contention also.\n<\/p>\n
 12.  In the result, the application fails and is
\ndismissed, but, in the circumstances, there will be
\nno order for costs.\n<\/p>\n
Sinha, J.\n<\/p>\n
 13. I agree.<\/p>\n","protected":false},"excerpt":{"rendered":"
Patna High Court Jagannath Prasad vs Mahabir Ram Kumar And Anr. on 17 September, 1952 Equivalent citations: AIR 1955 Pat 231, 1954 (2) BLJR 444 Author: Choudhary Bench: Sinha, Choudhary JUDGMENT Choudhary, J. 1. This is an application in revision by the plaintiff and is directed against an order of the Munsif of Jamshedpur dated […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,26],"tags":[],"class_list":["post-39058","post","type-post","status-publish","format-standard","hentry","category-high-court","category-patna-high-court"],"yoast_head":"\nJagannath Prasad vs Mahabir Ram Kumar And Anr. on 17 September, 1952 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/jagannath-prasad-vs-mahabir-ram-kumar-and-anr-on-17-september-1952\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Jagannath Prasad vs Mahabir Ram Kumar And Anr. on 17 September, 1952 - 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