Karan Singh v. Ram Sahai

Thom, C.J and Ganga Nath, J.:— This is a plaintiffs appeal arising out of a suit for possession of zamindari property.

The plaintiff alleged that he attached the property in suit on the 30th March, 1930. The attachment was made before judgment in a suit which was filed on the 29th March, 1930.

The defendant alleged that he had entered into an agreement with the owner of the property Mst. Kalawati to purchase it. This agreement was concluded according to the defendant on the 26th March, 1930. The learned District Judge has found that there was no oral agreement on the 26th March, 1930, but that there was a written agreement to purchase the property of the 31st March, 1930. In other words the agreement to purchase was entered into upon the day after the alleged attachment of the property.

Despite the order of attachment which certainly was issued on the 29th March, 1930, and which was proclaimed by beat of drum and affixed upon the property in suit on the 30th March, 1930, the learned District Judge has dismissed the suit. He has done so upon the ground that no notice of the interim order of attachment which was passed on the 29th March, 1930, was served upon Mst. Kalawati. Apparently Mst. Kalawati was not at her usual place of residence upon that date and the order calling upon Mst. Kalawati to show cause why her property should not be attached was only served upon her counsel on the 5th April, 1930. The learned District Judge held that in the circumstances there was no valid, attachment of the property in suit. In this, in our judgment, the learned District Judge has clearly misdirected himself in law.

Under order XXXVIII, rule 7, attachment before judgment shall be made in the manner provided for the attachment of property in execution of a decree. The attachment of property in execution of a decree is governed by order XXJ, rule 54. Order XXI, rule 54 provides that “Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge.” Sub-clause (2) of order XXI, rule 54, is as follows: “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.” Sub-rule (3) enjoins that “The order shall take effect as against purchasers for value in good faith from the date when a copy of the order is affixed on the property, and against all other transferees from the judgment-debtor from the date on which such order is made.”

It will be observed that there is no direction in order XXI, rule 54 that a copy of the prohibitory order shall be served upon the defendant. All that is enjoined is that the order shall be proclaimed and affixed. If the order is proclaimed and affixed, therefore, the attachment is complete and valid. If it were necessary to serve an interim, prohibitory order pending the return of notice of the application for attachment such an interim, order would afford little protection to the rights of the applicant.

There is no warrant for the proposition that an attachment is not complete until notice of the prohibitory order is served upon the owner of the property. The practice is perfectly plain, simple and straightforward. A party desiring attachment comes into court and prays for an attachment order. The court issues notice and if requested may grant an interim order of attachment. It is then for the person against whom the attachment is made to appear in court and show cause why the interim order should not be made absolute. In the meantime for the protection of the applicant the interim order has effect in accordance with the provisions of order XXI, rule 54(2). So far as purchasers for value in good faith are concerned the order of attachment in these provinces has effect from the date when a copy of the order is affixed upon the property and so far, as all other transferees are concerned from the date upon which the order is made. There is no provision in the Civil Procedure Code for the serving of the actual order of attachment upon the owner of the property attached; though there is of course provision for the service of notice of an application for attachment.

Accordingly we hold in the present case that the property in suit was validly attached upon the 30th of March, 1930, when the notice of the interim order was proclaimed and affixed as directed by order XXI, rule 54.

Part of the purchase price of the sale of the property in favour of the respondent by Mst. Kalawati is alleged by the respondent to be the amount due under the mortgage bond. In the circumstances of the present case we were invited by counsel for the respondent to adjust the equities as between the parties and to grant possession of the property to the plaintiff only upon the condition that the amount due under the mortgage bond was paid by him to the respondent. The Court would not be justified in granting this request. The respondent must, pursue his remedy against the mortgaged property in the ordinary way by means of a suit upon his mortgage. We are unable to say from the information before us what defence there may be to such a suit. The appellant may be in a position to oppose the claim under the mortgage. The appellant is entitled to unconditional possession of the property which he attached upon the 30th March, 1930, before judgment in his suit and which he subsequently purchased in execution of the decree which he obtained in that suit.

One further point was urged on behalf of the respondent. Mst. Kalawati under her contract with the respondent surrendered her sir rights. The respondent alleges that he paid Rs. 1,000 for these sir rights. The learned District Judge observes in the course of his judgment that Rs. 1,000 was paid by the respondent for the sir rights; but apparently no evidence was led upon the question and the Judge simply repeated the allegation of the respondent. We do not know the value of these sir rights and in any event even if the surrender of the rights be regarded as an improvement of the property the appellant has intimated to the Court through his counsel that he does not wish to acquire these rights. The position is, therefore, that the sale and the surrender in favour of the respondent by Mst. Kalawati are invalid and the plaintiff having purchased the property which he had attached before judgment in execution of his decree is entitled to unconditional possession. The property of course will be subject to the respondent's rights under his mortgage and to any claims which Mst. Kalawati may have in respect of her sir rights.

In the result the appeal is allowed, the order of the learned District Judge is set aside and the decree of the trial court is restored. The plaintiff is entitled to his costs.