Delhi And London Bank, Limited v. Ram Narain

Sir John Edge, C.J:— This was an action which the plaintiffs brought against the defendant to try the question as to who was entitled to the proceeds of an execution. It appears that Ram Sarup and Piare Lal whom I shall call the debtors, owed money to the defendant. On the 7th June, 1884, the defendant brought his suit against the debtors to recover that money, and on the same day applied for an injunction against the debtors under s. 492 of the Code of Civil Procedure, clause (b). On the 12th June, 1884, the [499] Court granted the injunction, which is in the following words: “Whereas it has, in this suit, been proved to the satisfaction of this Court that as regards the property mentioned below there is an apprehension of your transferring it to some person or of your causing damage to the disputed property by cutting down trees or pulling down buildings, you are hereby ordered to refrain from the act complained of without fail.” The property consisted of, amongst other things, two bungalows, the dealings with which are the subject-matter of this suit. On the 27th June, 1884, the debtors executed a mortgage of the same property to the plaintiffs, for a debt due. On the 7th August, 1884, the defendant obtained a money-decree in his suit against the debtors. On the 19th January, 1885, the plaintiffs obtained a decree on their mortgage for enforcement of their lien by sale, and on the 25th March, 1885, attached the property in question. I should have said that on the 12th August, 1884, the defendant had attached the same property under his money-decree of the 7th August, 1884. The plaintiffs and defendant respectively claimed execution. The property was sold and realised, after the payment of expenses, the money in dispute. It is contended that the effect of s. 492 of the Code of Civil Procedure was in this case to take away from the debtors the power to transfer the title of the property to the plaintiffs, or, in fact, to any one. In other words, that the mortgage executed by the debtors on the 27th June, 1884, was void by reason of the injunction of the 12th June, 1884. For that proposition no authority is cited. It is contended that s. 23 of the Contract Act applies, on the ground that the object of the mortgage was of such a nature that, if permitted, it would defeat a provision of law, that is, the injunction. It appears to me that s. 23 of the Contract Act does not apply to this case. It might apply if there were any provision of the law by which a mortgage under these circumstances would be void or illegal, or if it were forbidden by law that a particular creditor should obtain security for his debt. It is said that one of the penalties which result from an infringement of an injunction granted under s. 492 of the Code of Civil Procedure, is that any dealing with the property, the subject of such an injunction, contrary to the terms of the injunction, is illegal and void. For this proposition no authority has been cited. What I do find [500] is, that s. 493 provides a penalty for the breach of an injunction granted under s. 492, and the penalty there provided is not the one contended for. I fail to see why we should read into the section words which are not found there, in order to provide another penalty. The omission of any such words in s. 492 or s. 493 is all the more marked when we turn to ss. 274 and 276 of the same Code. Those sections relate to attachment of property, and even in the case of attachment of property under s. 274, a subsequent private alienation of the property is not rendered void, even as against claims enforcible under the attachment, unless the attachment has been made by actual seizure or by written order duly intimated or made known. In conclusion, I can find neither in the Codes, case-law, nor text-books, any authority to support the contention of the defendant in this action. Under these circumstances the appeal must be allowed with costs, and the decree of the lower Court must he set aside; the relief prayed for in paras A, B, C, D, of the plaint must be decreed with costs here and below. Mr. Colvin, relying on the strength of his point, has not raised the question as to whether or not the injunction was legally made. We do not consider it necessary to enter into that question.

Mahmood, J.:— I agree.

Appeal allowed.