MOHAMMAD YASHIN AND OTHERS Vs. PURAN CHAND AND ANOTHER
LAWS(ALL)-1965-10-36
HIGH COURT OF ALLAHABAD
Decided on October 14,1965

Mohammad Yashin And Others Appellant
VERSUS
Puran Chand And Another Respondents

JUDGEMENT

T.S.Misra, J. - (1.)This is a plaintiff's appeal arising out of a suit for declaration to the effect that the property involved was not liable to be sold in execution of the decree passed in suit No. 387 of 1962 and that the plaintiff is the owner of that property. The case of the plaintiff may briefly be stated as follows:-
On 24 Aug. 1963 the defendant No. 2, who was the erstwhile owner of the property in question, sold it to the plaintiff for a sum of Rs. 2,000.00 and put him in possession thereof. The defendant No. 1 had instituted a suit No. 387 'of 1962 against the defendant No. 2. That suit was decreed on 6th Feb., 1963. It was alleged by the plaintiff appellant that the defendant No. 2 satisfied that decree in its entirety in the month of June, 1963. It was also alleged that at the time of the execution of the sale deed the defendant No. 2 had assured the plaintiff that only a sum of Rs. 733.40 which was due towards a decree passed in another suit No. 28 of 1962 was outstanding against him and that the property in dispute had not been put under attachment before judgment. The plaintiff, however, further alleged that the attachment before judgment which was said to have been made on 1st Dec., 1962 in the suit No. 387 of 1962 was illegal, inoperative and not binding in as much as the provisions of order 38, Rule 5 and 6, C. P. C. as also of Order 21, Rule 24, C. P. C. had not been followed and no attachment of the property before the sale of the same to the plaintiff had been made in accordance with law. The suit was contested by the defendant No. 1 on a number of grounds inter alia alleging that the plaintiff was not entitled to sue, that the attachment of the said property had been properly made, and the suit was barred by the principles of res judicata. The suit was not contested by the defendant No. 2. The trial court found that the plaintiff had acquired valid title in the property in dispute and the said property had not been properly attached and was, therefore, not liable to be sold in execution of the decree in question. The plea of the bar of res judicata was, however, repelled. The trial court, therefore, decreed the suit. Against that decision the defendant Puran Chand preferred an appeal. Concurring with the trial court it was held by the appellate court below that a sum of Rs. 700.00 said to have been paid orally had not really been paid. It, however, held that a valid attachment had been made by the court amin and that the transfer made in favour of the plaintiff was void as against the said attachment, hence the property was liable to be sold in execution of the decree in question. The appeal was, therefore, allowed and the suit of the plaintiff was dismissed. Aggrieved, the plaintiff has now come up to this court in second appeal.

(2.)It was submitted by the learned counsel for the plaintiff appellant that no attachment before judgment of the property in question was made in conformity with the provisions of Order 38, Rule 7 read with Order, 21, Rule 54, C. P. C. and as such the sale of the property in favour of the plaintiff by the judgment-debtor was not hit by the provision of Sec. 64 C. P. C.
(3.)To appreciate the arguments advanced on behalf of the appellant it may be useful to examine, in brief, the scope of Order 38, Rule 5, C. P. C. The provisions of Order 38, Rule 5 of the Code of Civil Procedure are to prevent a decree that may be passed being rendered in fructuous whereas the provisions of Rule 1 (b) of Order 39 of the said Code are applicable where the defendant threatens to dispose of his property to defraud creditors. When an application is moved under Rule 5 of Order 38 in a suit, the Court has to be satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, 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, and when the court is so satisfied it shall ask the defendant, within a time to be fixed by it, to furnish security in such sum as may be specified in the order or to appear and show cause why he should not furnish the security. If the court is further satisfied that by merely asking the defendant to furnish the security the ends of justice would not be met and that it was also necessary in the meantime to attach the property, it would proceed to pass an order directing the conditional attachment of the whole or any part of the property so specified, as provided under sub-clause 3 of Rule 5 of Order 38. Rule 6 of Order 38 provided that when the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, he attached. Thus the Court has to pass an order directing security to be furnished for the sum specified within the time fixed by it and in the same order the court may make the attachment of the property. The attachment so ordered, shall be made in the manner provided for the attachment of the property in execution of the decree vide Rule 7 of Order 38. Where the property ordered to be attached is immovable, the attachment is to be effected in the manner laid down in Rule 54 of Order 21, C. P. C., i.e. the attachment shall be made by an order prohibiting the defendant from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. This order is to be proclaimed in the manner provided under clause 2 of Rule 54 of Order 21, C. P. C. The examination of the scheme thus reveals that, first, there must be an order of attachment and second, the order has to be executed in the manner provided for the attachment of the property in execution of a decree. In other words, there should be prohibitory order restraining the person from, in any way, transferring or charging the property sought to be attached and, third, the order shall be proclaimed 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. For making an order of attachment effective the conditions mentioned above have to be complied with. A property cannot be declared to be attached unless firstly, the order of attachment has been made and secondly, in the execution of that order the other requirements prescribed by the rules in the Code of Civil Procedure have been complied with. To put it differently an attachment comes into existence when the whole procedure prescribed by law for making the attachment has been followed. The attachment will not come into existence if the prescribed procedure has not been followed but where the procedure has been substantially followed mere minor irregularities, not affecting the real object, would not render the attachment invalid. If the order of attachment before judgment is found to be not in conformity with the provisions of Rule 5 of Order 38 and is, therefore, illegal or if the attachment has not been effected in accordance with the rules prescribed for attachment of property in execution of a decree, a private transfer of the property contrary to such attachment would not be void. Thus if the property sought to be attached is immovable and the attachment has not been made in accordance with the provisions of Rule 54 of Order 21 inasmuch as it is not made by an order prohibiting the defendant from transferring or charging in any way, and all persons from taking any benefit from transfer or charge or no proclamation in the manner laid down in sub-clause (12) of Rule 54 is made, a private transfer of the property in favour of a third person cannot be deemed to be void as against the claims enforceable under the attachment of that property. Sec. 64 of the Code of Civil Procedure makes the attachment of the property void as against all claims enforceable under the attachment but it is not void generally. If the attachment was removed, any private transfer of that property contrary to such attachment would not be considered to be void for there would be no claim enforceable under the attachment. However, where an attachment has been made in accordance with law any private transfer or delivery of the property attached or of any interest therein, contrary to such attachment, shall be void as against all claims enforceable under the attachment. The attachment comes into existence when firstly, the order for attachment has been issued and secondly, in execution of order, the other things prescribed by the rules in Code of Civil Procedure have been done. A private transfer of the property by a judgment-debtor is prohibited where the attachment has been made and not otherwise.
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