CHINTALAPATI VENKATA SUBBARAO AND ANOTHER Vs. GAMINI KRISHNAYYA AND OTHERS
LAWS(APH)-1955-7-26
HIGH COURT OF ANDHRA PRADESH
Decided on July 01,1955

Chintalapati Venkata Subbarao And Another Appellant
VERSUS
Gamini Krishnayya And Others Respondents


Referred Judgements :-

MUTHIA. CHETTY V. PALANIAPPA CHETTI [REFERRED TO]
BAI HAKIMBU BAI V. DAYABHAI RUGNATH [REFERRED TO]
SITA NATH PATI VS. SARADA PRASANNA DAS [REFERRED TO]
MONOHARLAL BANERJEE VS. BENGAL IMMUNITY CO LTD [REFERRED TO]
SADHU PRASAD SAH VS. SATNARAIN SAH [REFERRED TO]
BHARAT CHANDRA PAL VS. GOURANGA CHANDRA PAL [REFERRED TO]
HARIHAR PANDEY VS. VINDHAYACHAL RAI [REFERRED TO]
MURUGAPPA CHETTIAR VS. THIRUMALAI NADAR AND ORS. [REFERRED TO]


JUDGEMENT

Viswanatha Sastri, J. - (1.)THE legal representatives of the deceased 8th defendant are the appellants from the decree of the Court of the District Judge, Krishna, in O. S. No. 40 of 1948, The suit was for recovery of money due on a mortgage, Ex. A -1 dated 23 -7 -1934, executed by the 1st defendant in favour of the 1st plaintiff as the manager of joint family. The 8th defendant was the purchaser of a portion of the mortgaged property, namely, items 3 and 5 of schedule A and item 2 of Schedule B, at a Court -sale held on 29 -G -1942 in execution of a money decree in O. S. No. 37 of 1933 on the file of the District Court of Krishna.
The 8th defendant pleaded that the mortgage, Ex. A -1, was not enforceable against the properties in his hands for several reasons. He alleged that the mortgage was a sham, unsupported by consideration. He also pleaded that the mortgage was void and unenforceable as against the properties purchased by him, having been executed during the pendency of an attachment before judgment of the properties in O. S. No. 37 of 1933 in execution of the decree in which the aforesaid properties were sold by Court on 29 -6 -1942, he being the purchaser at the Court -sale.

He also alleged that the plaintiff was estopped from questioning the validity of the attachment and the Court sale which followed it by reason of certain orders passed against the 1st defendant in O. S. No. 37 of 1933. The Court below overruled these pleas of the 8th defendant and decreed the suit. Before us there was challenge of the finding of the lower Court that the mortgage, Ex. A -1, was supported by consideration.

(2.)THE main question for consideration is the validity of the attachment before judgment purported to have been made in O. S. No. 37 of 1933 on the file of the District Court, Krishna filed by a creditor for recovery of money due from the 1st defendant. Along with the plaint in that suit an application for attachment before judgment of the properties of the 1st defendant including the properties later on mortgaged under Ex. A -1 was made.
The application was numbered as I. A. No. 656 of 1933. On 25 -9 -'33 the Court passed an order on I. A. No. 656 of 1933 in these terms:

'Attach and notice to 25 -10 -1933". The order was made before the first defendant had any notice of the suit or the application for attachment before judgment. The 1st defendant appeared in Court on 25 -10 -1933 and a few days later filed his objections to I. A. No. 656 of 1933. For one reason or other, I. A. 656/33 was not disposed of till 15 -10 -1934 on which date the order sheet contains the following entry: "The attachment is confirmed. None of the defendants contesting today. The suit also is decreed today.

We may refer to the events that happened subsequent to "he order dated 25 -9 -1933 passed in I. A. No. 656 of 1933. A warrant was framed and issued in the terms of Form No. 5 of Appendix F. C. P. C. A notice also in the same terms was issued for service on the defendant, that is to say, in accordance with Form No. 5 of Appendix, F, Civil Procedure Code. The Amin who executed the warrant made a return, Ex. A -2 (a) dated 30 -9 -1933.

According to the return the Amin attached the property mentioned in the schedule annexed to the warrant, fastened a copy of the property -scheduled and a copy of the order to a post on the attached property and caused it to be proclaimed by tom -tom that the property under attachment should not thereafter be mortgaged or alienated. He also reported that on 29 -9 -1933 he affixed a copy of the order and a copy of the schedule of the property to the notice board of the Court. No further orders were passed by the Court except orders or adjournment of I. A. 656 of 1933, nor were any other steps taken to effect an attachment.

It was only on 15 -10 -1934 that the Court passed an order confirming the attachment and decreeing the suit. The mortgage, Ex. A -1, was executed by the 1st defendant on 23 -7 -1934. The properties mortgaged were later on sold by the Court on 29 -6 -1942 in execution of the decree in O S. No. 37 of 1933 and the 8th defendant, appellant herein, purchased some of the properties comprised in the mortgage at the Court -sale. The question is whether the mortgage, Ex. A -1, is void under S. 64, C. P. C., having been effected contrary to the attachment before judgment made in I. A. 656 of 1933.

(3.)UNDER S. 64 C. P. C. an alienation of property contrary to an attachment before judgment would be void to the same extent as an alienation made contrary to an attachment in execution. To render a subsequent alienation invalid, an attachment before judgment just like an attachment in execution must be made in the manner prescribed by the Civil Procedure Code. It is only then that the attachment would operate as a valid prohibition against alienation.
Order 21, Civil P. C. prescribes different rules for attachment of different kinds of property like lands, moveables, debts, decrees, negotiable instruments, salaries, funds in Court, standing crops etc. Referring to these provisions, the Judicial Committee observed in - 'Muthia. Chetty v. Palaniappa Chetti',, AIR 1923 PC 139 at pp 141 -142 (A).

These instances go to show that under the Civil Procedure Code in India, the most anxious provisions are enacted in order to prevent a mere order of a Court from effecting attachment, and plainly indicating that the attachment itself is something separate from the mere order, and is something which is to be done and effected before attachment, can be declared to have been accomplished. 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.

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