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Appeal from Appellate Order No. 16 of 1958, decided on 29th June 1959.
Ss. 47, 51 (b) and O. XXI, Rr. 30, 54 and 64‑Whether decree‑holder can proceed with execu tion of decree without attaching property‑Sale in execution of decree without attachment‑Whether valid.
The decree‑holder, before filing his suit, filed an application under Order XXXVIII, rule 5 of the Civil Procedure Code, 1908' and obtained an order of attachment before judgment. There after, he obtained the decree and put it into execution. Although he had obtained the order of attachment yet there was no actual attachment in pursuance of that order. On behalf of the judg ment‑debtor it was argued that the execution case could not pro ceed as there was no attachment of the property sought to be sold in execution of the decree and there could not be any sale in execution of money decree without attachment under Order XXI, rule 54 of the Civil Procedure Code, 1908. The decree‑holder, on the other hand, relying on the provisions of section 51(b) of the Code contended that the property could be sold in' execution of a decree without prior attachment of the same :
Held, that it was not just and reasonable to allow the decree holder to proceed with ht execution of the decree by selling the property without attaching it first which was in consonance with rules 30 and 64 of Order XXI of the Civil Procedure Code, 1908. Although there was an order of attachment in the case, there was no actual attachment in pursuance of that order. The attach ment is something separate from and more than a mere order for attachment. The order of attachment is a necessary preliminary, but until further steps prescribed have been taken there cannot be a valid attachment.
The opening word of section 51 of the Civil Procedure Code, 1908 says that the powers given to the executing Court are made subject to such conditions and limitations as may be prescribed by the rules. Therefore, normally the procedure laid down for sale of the property is to be followed though the executing Court was given the general power of sale of the property in execution of decree. This section merely enumerates different modes of execution in general terms, while the conditions and limitations under which alone the respective modes can be availed of are prescribed further by different provisions. There is therefore, no wide and unrestricted jurisdiction to order execution in every case in all the ways indicated therein. When the procedure laid down in Order XXI, rule 54 is to be followed in the execution of a decree there is no reason why the decree‑holder should be allow ed to proceed without following those procedures. The provision of attachment has been made not only for the safety of the decree- holder, but also for the safety of the auction‑purchaser. Because, if the property is alienated before the sale by the judgment‑debtor, neither the decree‑holder nor the auction‑purchaser can get any benefit out of the sale of the property in execution of the decree. In order to safeguard the interest not only of the decree‑holder but also of the auction‑purchaser the provision for attachment in execution of the decree and sale after attachment of the pro perty has been provided for. If the decree‑holder does not follow this Procedure the Court should not allow him to proceed with the execution case.
When, however, a sale of immovable property has actually taken place, in the execution of a decree, and its validity is impeached on the ground that it was not attached, the absence of attachment does not, by itself, vitiate the sale.
Where, however, objection is taken to the legality of the execution proceedings before the sale has taken place the position is entirely different. In this event the plain duty of the Court is to ensure compliance with the provisions of the Code when there is still ample time left for necessary action.
K. Swaminatha Iyer and another v. K. G. Krishnaswami Iyer and others A I R 1947 Mad. 213 ; Raja Wazir Narain Singh v. Bhikhari Ram I L R 2 Pat. 207 ; Naresh Chandra Mitra v. Molls Ataul Huq I L R 57 Cal. 1206 ; Namdeb Krishna Chowdhury v. Govardhan Nanabhai Gujrathis and others A I R 1939 Bom. 977; Sasirama Kumari v. Meherban Khan and others 13 C L J 243 9 I C 918 (921‑22) ; Panchanan Das Majumdar v. Kunja Behari Malo and others 42 I C 259 ; A. T. K. P. L. M. Muthiah Chetti v. Palaniappa Chetti and others A I R 1928 P C 139=32 C W N 821 and Ram Swarup v. Anandilal I L R 58 All. 949 ref.
Srish Chandra Dutt for Appellant.
R. K. Bhattacharyya for Respondents.
This appeal arises out of a miscellaneous case, started under section 47 of the Code of Civil Procedure, and it is directed against the order of the lower Appellate Court.
2. Facts of the case, shortly stated, are as follows : The appellant before‑me obtained a money decree against the respon dents. Before he filed the suit' he obtained an order of attach ment before judgment under Order XXXVIII, rule 5 of the Code of Civil Procedure. Thereafter, he obtained the decree, and put it into execution to which the judgment‑debtors filed an objection through their duly constituted attorney alleging that the execution case cannot proceed as there was no legal and valid attachment of the property sought to be sold. This objection is based on two grounds. First of all they alleged that the property sought to be sold in execution of the decree does not belong to the judgment -debtors alone, but their mother also got a share, and as the said mother was not a party to the suit or to the execution proceeding, her share in the property cannot be sold. The second ground is that there is no attachment 'of the property sought to be sold in execution of the money decree, and without attachment there cannot be a sale.
3. Both the Courts below allowed the objection. The trial Court allowed it on both grounds holding that "as the pro perty which does not entirely belong to the judgment‑debtors, but has been attached including the share of the mother of the judg ment‑debtor, who is not liable for the dues, the attachment has been illegal, and as the attachment has not been in conformity to the laws and rules it is invalid and ineffective, and, as such, the property cannot be sold as published for sale, and that .the execu tion case cannot proceed without proper attachment of the property.
4. On appeal the learned Subordinate Judge held that though the entire property did not belong to the judgment‑debtors the alleged attachment will be effective as to 'the share of the judgment‑debtors only, and, therefore, on that ground it cannot be said that the execution cannot proceed. But on other ground the learned Subordinate Judge held that there was no attachment by prohibitory order‑in Form No. 24, Appendix E, as required by Order XXI, rule 54 of‑the Code of Civil Procedure though there was an order in Form No. 5, Appendix F of the Code of Civil Procedure, and, therefore, the attachment before judgment was not only an irregularity, but it is void, and as such, the appellant was not entitled to proceed with the present execution case on the basis of the attachment before judgment without proper attachment of the property in question. Hence this appeal.
5. Mr. Dutt, the learned Advocate for the appellant, rely ing on section 51 (b) of the Code of Civil Procedure as well as on the case of K. Swaminatha Iyer and another v. K. G. Krishna swami Iyer and others (A I R 1947 Mad. 213), Raja Wazir Narain Singh v. Bhikhari Ram (I L R 2 Pat. 207), Naresh Chandra Mitra v. Molla Ataul Huq (I L R 57 Cal. 1206 (1208)) ; Namdeb Krishna Chowdhary v. Govardhan Nanabhai Gujrathis and others (A I R 1939 Bom. 977) contends that there can be sale without attachment.
6. On the other hand, Mr. Bhattacharjee, the learned Ad vocate for the respondents, relying on the case of Sasirama Kumari v. Meherban Khan and others (13 C L J 243 (250)=9 I C 918 (921‑22)) and Panchanan Das Majumdar v. Kunja Behari Malo and others (42 I C 259), contended that there could not be any sale in execution of money decree without attachment under Order XXI, rule 54 of the Code of Civil Procedure.
7. It appears from the record that the decree‑holder appel lant filed an application for attachment before judgment under Order XXXVIII, rule 5 of the Code of Civil Procedure. A Rule was issued to show cause why the defendants should not furnish security or either property should not be attached. The defen dants did not appear, and the Court made the Rule absolute, and ordered that the property specified be attached. There is an order of attachment, but there is no actual attachment, in pursu ance of that order. The attachment is something separate from and more than a mere order for attachment. The order of attach ment is a necessary preliminary, but until further steps prescribed, have been taken there cannot be a valid attachment, vide A. T. K. P. L. M. Muthiah Chetti v. Palantappa Chetti and others (AIR1928PC'139=32CWN821). So an alienation of property after an order of attachment but before real attachment or observation of the formalities is not hit by section 64 of the Code of Civil Procedure. Section 64 runs as follows :
"Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment‑debtor of any debt, divi dends or other moneys contrary to such attachment, shall be void as against all claims enforceable under the attach ment."
Therefore, there is no doubt that there is no valid attachment as contemplated by Rule 7 of Order XXXVIII of the Code of Civil Procedure, namely "Save as otherwise as expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree." Therefore, there cannot by any doubt or dispute now that there is no valid attachment though there was an order of attachment.
8. Mr. Dutt for the appellant relying on section 51 of the Code of Civil Procedure contends that there can be a sale of the property without attachment. The material portion of section 51 runs as follows :
"Subject to such conditions and limitations as may be pre scribed, the Court may, on the application of the decree -holder, order execution of the decree (a) by delivery of any property specifically decreed, (b) by attachment and sale or by sale without attachment of any property."
The last portion of this clause (b) which provides for sale without attachment of any property is the sheet‑anchor of Mr. Dutt's contention that the property can be sold without attachment. Mr. Dutt totally forgets that section 51 was introduced by amend ment of the Code of Civil Procedure for the purpose of providing the general provisions for the mode of execution of decree in general. As for example, in case of a mortgage decree there is no necessity for attachment of the property before it is sold in execution of the mortgage decree. But in the' case of execution of money decree it is necessary to attach the property before it is sold, because of the provisions of Order XXI, Rule, 30 and 64 of the Code of Civil Procedure. Order XXI, rule 30 pro vides :
"Every decree for the payment of money may be executed by the detention in the civil prison of the judgment‑debtor or by attachment and sale of his property, or by both."
Rule 64 of Order XXI provides :
"Any Court executing a decree may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold . . . . . ."
Order XXI, r rule 54, which provides for the mode of attachment, runs as follows : .
"54(1) Where the property is immovable the attachment shall be made by an order prohibiting the judgment‑debtor from transferring or charging property in any way, and all persons from taking any benefit from such transfer or charge.
(2) The order shall be proclaimed at some place or an adjacent to such property by beat of drum or other customay mode, and a copy of the order shall be affixed on a conspicu ous 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 situated."
This order is to be proclaimed and published as required by sub -rule (2) of Rule 54. The opening word of section 51 says that the powers given to the executing Court are made subject to such conditions and limitations as may be prescribed by the rules. Therefore, normally the procedure laid down for sale of the pro perty is to be followed though the executing Court was given the general power of sale of the property in execution of decree. This section merely enumerates different modes of execution in general terms, while the conditions and limitations under which alone the respective modes can be availed of are prescribed further by different provisions. In the case of Ram Swarup v Anandilal (I L R 58 All. 949), Sulaiman, C. J., observed that : "The Legislature has taken care to preface the section with the words subject to such conditions and limitations as may be prescribed'." It is therefore, obvious that there was no wide and unrestricted jurisdiction to order execution in every case in all the ways indicated therein. The jurisdiction has to be exercised subject to such con ditions and limitations as may be prescribed by the rules in the Schedule. Under the old Code which contains no provisions corresponding to present section 51 there was a conflict of opin ions, one class of cases holding that the object of attachment is to bring the property under the control of the Court with a view to prevent the judgment‑debtor from alienating it, and that the absence of attachment is nothing more than an irregularity and does not ipso facto vitiate the sale. To this class falls the cases relied on by Mr. Dutt, the learned. Advocate for the appellant. There is another class of cases holding that an attachment is essential preliminary 'to sale in execution of a simple decree for money, and that absence of attachment makes the sale de facto, void. To this class comes in the cases relied on by Mr. Bhattacharjee the learned Advocate for the respondents, i.e., the case reported in 42 I C 259. Even after the introduction of section 51 almost all the High Courts of undivided India held that if there is a sale without attachment the sale cannot be regarded as void ab initio, but want of attachment will be treated as an irregularity. If the judgment‑debtor suffers a substantial loss then it is liable to be set aside under Order XXI, Rule 90 of the Code. If the judgment‑debtor suffers substantial loss on account of this irregularity or if the judgment‑debtor had no saleable interest, the auction‑purchaser can file an application for setting aside the sale under Order XXI, Rule 90. In the case of Panchanan Das Majumdar v. Kunja Behari Malo and others, Fletcher and Newbould, JJ. held, a Court has no jurisdiction to hold a sale without attachment. Order XXI, Rule 64 provides that the Court executing a decree may order that, any property attached' by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree shall be sold. This view has been dissented from in the case of Naresh Chandra Mitra v. Molla Ataul Huq. But following the ratio decidendi, I am of opinion that if there is any sale and that sale is without attachment or is a defective attachment, the sale cannot be viti ated, but it is liable to be set aside under Order XXI, Rule 90 of the Code of Civil procedure. I am not confronted in this case so much with the question whether the sale without attachment is void or void-able as I am confronted with the question whether for want of attachment the execution proceeding for selling the property in execution of the decree can be allowed to proceed. When the procedure laid down in Order XXI, Rule 54 is to be followed in execution‑of the decree, I do not find any reason why the decree‑holder should be allowed to proceed without following that procedure. The provision of attachment has been made not only for the safety of the decree‑holder, but also for the safety of the auction‑purchaser. Because, if the property is alienated before the sale by the judgment‑debtor, neither the decree‑holder nor the auction‑purchaser can get any benefit out of the sale of the property in execution of the decree. In order to safeguard the interest not only of the decree‑holder but also of the auction‑purchaser the provision for attachment in execution of the decree and sale after attachment of the property has been pro vided for. If the decree‑holder has not followed the procedure, I think the Court should not allow him to proceed with the execu tion case. Further. I do not find any reason how this procedure, namely, the execution of the decree without attachment will be beneficial to the decree‑holder. In the present case it is found by both the Courts below, and I agree with them, that though there is an order of attachment, there is no actual attachment of the property. If the decree‑holder is directed to proceed according to law, namely, to attach the property to be sold in execution of the decree, I do not understand how the decree‑holder will be prejudiced. There is no attachment uptill now, and if he now goes to attach the property, there is ho reason why he will be put to a complicated position. In the case of Sasirama Kumari v. Meherban Khan and others, it has been held :
"When a sale of immovable property has actually taken place and its validity is impeached on the ground that it was not attached the absence of attachment does not by itself, vitiate the sale.
Where, however, objection is taken to the legality of the proceedings before the sale has taken place the position is entirely different. In this event the plain duty of the Court is to ensure compliance with the provisions of the Code when there is still ample time left for necessary action."
I entirely agree with this view, and hold in this case that the decree‑holder, appellant cannot proceed to sell the property in execution of the money decree without attaching the property under Order XXI, Rule 54 of the Code of Civil Procedure, and if he wants to attach the property the legitimate claimants may come and put forward their claims along with the judgment‑debtor or independently of the judgment‑debtor. Therefore, it is just and reasonable not to allow the decree‑holder to proceed with the execution of the decree by selling the property without attaching it first which is in consonance with Rules 30 and 64 of Order XXI of the Code of Civil Procedure.
9. Mr. Dutt, the learned Advocate for appellant, refers to the decision of Beaumont, C. J., of Bombay High Court in the case of Namdev Krishna Chowdhury v. Govardhan Nanabhai and others, where it has been held that the effect of Rules 30 and 64 of Order XXI was not to limit the power given by section 51 to sell without attachment, the absence of which did not vitiate such a sale, nor was the judgment‑creditor guilty of any irregularity. I have already pointed out that if after the sale any objection is raised for want of attachment or irregularity in the attachment, the sale cannot be vitiated though in some cases it has been held that it is an irregularity. But now the question before me is, whether the decree‑holder can proceed with the execution of the decree without attaching the property. I think the Court should not allow him to proceed. Section 51 of the Code of Civil Pro cedure makes it clear that sale without attachment is not without jurisdiction though in view of Order XXI, Rules 30 and 64 of the Code of Civil Procedure it may amount to an irregularity. So it seems to me that the learned Subordinate Judge is perfectly right in holding that the decree‑holder appellant was not entitled to proceed with the sale of the property in execution of the money decree without attaching the property.
10. The result, therefore, is that this appeal fails, and I dismiss the appeal with costs.
K. B. A.
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