S.D.Singh, J. - (1.) The appellants in both the appeals are judgment-debtors in decree No. 59 of 1958 of the Court of Civil Judge, Kanpur, which was passed ex parte on 19th May, 1958, and the respondents are the Firm Haji Sanaullah and sons, who are decree-holders in the aforesaid decree.
(2.) While the suit was still pending, the respondents moved an application for attachment before judgment under Order XXXVIII, Rule 5 of the Code of Civil Procedure, (to be referred to hereafter as the Code). The property sought to be attached was, however, situated at Lucknow aud he order for attachment of the property was, therefore, sent to Lucknow under Sub-section (1) of Section 136 of the Code. This Sub-section (1) of Section 136, however, requires that the order of attachment shall be sent to the District Court within the local limits of whose jurisdiction the property is situate and under Sub-section (2) of the same section it is open to the District Court to have the attachment made by its own officers or by a Court subordinate to itself. What the Civil Judge at Kanpur. however, did was that the order of attachment was sent direct to Civil Judge, Lucknow. who even ordered the attachment of the property without caring to see whether he could execute the order of attachment of the property under a precept received by him direct.
(3.) After the suit was decreed, the decree was transferred to the Lucknow Court for execution and as according to the decree-holders, the attachment had already been made before judgment, they applied for execution of the decree by sale of the property on 25th August, 1958. No objections were filed by the appellants at the stage of the settlement of terms of sale or drawing up of the sale proclamation. Dates were fixed for sale of property, but for one or two dates the appellants obtained adjournment of the same to enable them to negotiate a private sale or to arrange for money by mortgage of the property. Ultimately 12th October, 1959, was fixed for sale and in the meantime an objection under Section 47 was filed by the appellants on 17th September, 1959, the main contention in this objection being that the attachment of the property, which was made before judgment, was invalid and that consequently, therefore, the property could not besold. 14th November, 1959, was fixed for the hearing of this application. The sale could not be held even on 12th October and was adjourned on that date to 26th October and as there was no application for stay of sale, the property was actually knocked down on that date. The objection filed by the appellants came up for hearing on the date fixed. By his order dated 17th November, 1959, the Civil Judge virtually dismissed the objection. Reliance was placed during the hearing of that objection on behalf of the appellants on Firm Surajbali Ram Harakh v. Mohar Ali, AIR 1941 All 212, in which it has been held that any order of attachment before judgment, if it has to be sent to a Court in another district, must be sent to the District Court and that if it is sent to a subordinate Court direct, any attachment made by that Court would be ineffective. The Civil Judge realised the force of the view taken in this case, but held that since the sale had already taken place, any objection, which the judgment-debtors wanted to raise, must be in proceedings under Order XXI Rule 90 of the Code. He, therefore, directed : "This application is, therefore, filed with direction that as the sale has already taken place, the judgment-debtor's remedy is to file an objection for setting aside the sale incorporating his present contention, about the invalidity of the attachment, and this Court will then consider the consequences of the attachment order having been sent to the Civil Judge, Lucknow direct instead of its having sent to the District Court. The objection is disposed of accordingly.";