Chintalapati Venkata Subbarao and another vs Gamini Krishnayya and others

Viswanatha Sastri, J.—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.

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.

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 CPC 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.

It may be remarked that these observations of the Judicial Committee were made in a case where the attachment was before judgment, but they would ''a fortiori'' apply to an attachment hi execution. The Judicial Committee proceeded on the basis that an attachment before judgment to be valid, must be effected in the manner prescribed by O. 21, R. 54, C. P. C. Order 38, R. 7, C. P. C. prescribes that, save as otherwise expressly provided, attachment before judgment shall be made in the manner provided for the attachment of property in execution of a decree.

Instead of incorporating in extenso the provisions of O. 21, Rr. 43 to 54 in O. 38, the framers of the Cods made a general provision in O. 38, R. 7 that an attachment of property before judgment shall be effected in the same manner as an attachment of property in execution. It is evidently because an attachment before judgment is required to be made in the same manner as an attachment in execution that O. 38, R. 11 dispenses with necessity for re-attachment of the property in execution of the decree passed subsequent to the attachment before judgment.

For these reasons, we are unable to accept the contention of the appellant that an attachment before judgment need not comply with all the requirements of O. 21, R. 54, C. P. C.

In the present case, therefore, we have to ascertain whether the attachment before judgment of the lands mortgaged to the plaintiff was made in the manner prescribed by O. 21, R. 54, C. P. C. We have already referred to the terms of the order dated 25-9-1933. The warrant of attachment, Ex, A-2(a), was in the terms of FormNo. 5 of Appendix F and the notice to the defendant was also in the same terms.

There was no order prohibiting the defendant from transferring or charging the properties sought to be attached and other persons from taking any benefit from such transfer or charge as required by O. 21, R. 54. C. P. C. There being no such prohibitory order, it could not obviously have been published in the manner prescribed by O. 21, R. 54, C. P. C. In the decision of the Privy Council above referred to, it was observed that the contention that a property was in law attached whenever the order for attachment was made was fallacious.

To be valid and effective, an order of attachment should prohibit the judgment-debtor from transferring the property and such prohibition should also be proclaimed and made known in the way provided by O. 21, R. 54. C. P. C. In other words, there cannot be a valid attachment before judgment unless all the formalities prescribed by O. 21, R. 54, C. P. C, are complied with.

The learned Advocate for the appellants argued that the only form of notice and warrant of attachment before judgment provided by the CPC in 1933 was Form No. 5 of Appendix F and this form was adopted in the present case. In any case, he argued, that Amin who executed the warrant attached the properties and also proclaimed in the village that they should not thereafter be mortgaged or alienated.

There was, according to him. a substantial compliance with the requirements of the law particularly when O. 38, R. 7 did not itself prescribe the formalities to be gone through before an attachment before judgment could be effected. We are unable to accept this contention. Notice to the defendant and a warrant to the bailiff in terms of Form No. 5 of Appendix F were no doubt issued after the Court passed the order on 25-9-1933. The Court passed an interim order for attachment before the issue of any notice to the defendant.

No prohibitory order was made in the manner prescribed by O. 21, R. 54(1), C. P. C., and no such order could, therefore, have been published as required by O. 21, R. 54(2), C. P. C. Nor was any notice given to the defendant prohibiting him from alienating his properties on the lines of Form No. 24 of Appendix E. The absence of a suitable form in 1933 in Appendix F, Civil P. C., itself is not very material. Form No. 24 of Appendix E could have been used with such modifications as were necessary by reason of the fact that the attachment was one before judgment.

The forms given in Appendix E and Appendix F are not inflexible or cast-iron forms incapable of adaptation to the circumstances of a particular case. Order 48, R. 3. C. P. C., itself provides that the forms in the Appendices shall be used with such variations as the circumstances of each case require. Form No. 5 of Appendix F appears to be appropriate to an attachment of moveables which are directed to be kept under "safe and proper custody of the Officer effecting the attachment". Form No. 24 of Appendix E with the modifications necessitated by the fact that the attachment was before judgment, should have been used in the present case, where immoveable properties were sought to be attached before judgment.

The absence of a suitable form in Appendix F for service on the defendant, cannot, in our opinion, validate an attachment not made in conformity with O. 38, R. 7, C. P. C. read with O. 21, R. 54, C. P. C. Nor does the'' fact that Form 7-A of Appendix F was introduced by the Rule Committee in Madras in 1941 as being appropriate for notices of attachment of immoveable properties before judgment validate the attachment made in this case without the issue of a prohibitory order and without the publication of such an order as prescribed by O. 21, R. 54, C. P. C. The fact that the Amin proclaims something that had not been ordered by the Court or its duly authorised officer cannot be pressed into service by the appellant. The Amin had no authority to pass prohibitory orders or to publish anything on his own responsibility.

We are, therefore, of the opinion that it is not sufficient to publish the order of attachment before judgment of immoveable property in the terms of Appendix F, form No. 5 but the law requires that a prohibitory order must be made and published in the manner prescribed by O. 21, R. 54, C. P. C., It is only then that the attachment before judgment can operate as a valid prohibition against alienation of the property sought to be attached. There being no such order and no such publication in the present case, we hold that the mortgage Ex. A-1 is not void under S. 64, C. P. C.

There is ample authority for the conclusion that we have arrived at on examination of the relevant statutory provisions (see Murugappa Chettiar Vs. Thirumalai Nadar and Others, ; Noor Mahomed Mohideen Pillai Taragan and Another Vs. Pechi Ammal, ; - Harihar Pandey Vs. Vindhayachal Rai and Others, ; Sadhu Prasad Sah Vs. Satnarain Sah and Another, Monoharlal Banerjee Vs. Bengal Immunity Co. Ltd. and Another, - Sita Nath Pati Vs. Sarada Prasanna Das and Others, ; - Bharat Chandra Pal Vs. Gouranga Chandra Pal and Another, and - Bai Hakimbu Vs. Dayabhai Rugnath, In these cases, orders for attachment before judgment had been made but the prohibitory order contemplated by O. 21, R. 54, C. P. C., had not been issued and published as required by that rule.

We are in respectful agreement with the principle laid down in these cases. In order to remove a possible misapprehension arising from the general language employed in Noor Mahomed Mohideen Pillai Taragan and Another Vs. Pechi Ammal, we might observe that the warrant of attachment issued to the bailiff as well as the notice in Form No. 24 of Appendix E of C. P. C., issued for service on the defendant should contain a prohibition against alienation, but the warrant and the notice issued under the seal of the Court might be signed by an officer of the Court lawfully authorised in its behalf.

In the view we have taken, it is unnecessary to consider whether publication in the Collector''s office is necessary under O. 21, R. 54, C. P. C., where the property sought to be attached is the interest of a ryot in his holding in a zamindary. the ryot being liable to pay the Government only water cess and no land revenue.

The appellants'' learned Advocate could not point to any order of the Court to which the plaintiff or his predecessor-in-title was a party, either expressly or by necessary implication negativing the present plea of the plaintiff that the attachment before judgment was invalid. This plea of res judicata was, therefore, rightly rejected by the Court below.

For these reasons, we are of the opinion that the decision of the Court below is correct and that this appeal fails and must be dismissed with costs.