Ganeshmul Sait and Another vs Muhammad Ismail Sahib and Another

Leach, C.J.—This second appeal has been placed before a Full Bench because Kuppuswami Ayyar J. before whom it came in the first

instance, thought that it involved the reconsideration of Alagiriswami Pillai v. Lakshmanan Chetti AIR 1926 Mad. 371 which was decided by a

Division Bench. Having been placed in possession of the facts we are of the opinion that the appeal does not call for the reconsideration of

Alagiriswami Pillai v. Lakshmanan Chetti AIR 1926 Mad. 371. In O.S. No. 561 of 1934 of the District Munsif''s Court, Vellore, respondent 2

obtained a mortgage decree against the appellants. In S. C. S. No. 1345 of 1938 of the same Court respondent l obtained a decree against

respondent 2 and decided to execute it by the attachment of the decree obtained by respondent 2 in O.S. No. 561 of 1934. Section 33, Provincial

Small Cause Courts Act, 1887, states that a Court invested with the jurisdiction of a Court of Small Causes with respect to the exercise of that

jurisdiction, and the same Court with respect to the exercise of its jurisdiction in suits of a civil nature which are not cognizable by a Court of Small

Causes, shall, for the purposes of the Act and the Civil Procedure Code, be deemed to be different Courts. Therefore the District Munsif sitting to

try O.S. No. 561 of 1934 constituted a different Court from that which he constituted when he tried S. C. S. No. 1345 of 1938.

Order 21, Rule 58 (1), Civil P. C, states the procedure to be followed when a decree is sought to be attached in execution. Clause (a) of Sub-

rule (1) states that if the decree to be attached was passed by the same Court the attachment shall be made by an order of that Court. Clause (b)

states that if the decree sought to be attached was passed by another Court, then the attachment shall be made by the issue to such other Court of

a notice by the Court which passed the decree sought to be executed, requesting the other Court to stay the execution of its decree, unless and

until (1) the Court which passed the decree sought to be executed cancels the notice, or (2) the holder of the decree sought to be executed or his

judgment-debtor, if he has obtained the consent in writing of the decree-holder or the permission of the attaching Court, applies to the Court

receiving the notice to execute that decree.

The defendants in O.S. No. 561 of 1934 say that that decree cannot be executed by respondent 1 because the District Munsif sitting as a Judge

of Small Causes did not issue to himself as the District Munsif exercising ordinary jurisdiction a notice in writing requesting a stay of the execution

of the decree passed in O.S. No. 561 of 1934. It is true that a notice in writing was not issued, but whether that vitiates the proceedings in

execution of the decree in O.S. No. 561 of 1934 is quite another matter. The decree in O.S. No. 561 of 1934 was passed on 24th September

1936, and the decree in S. C. S. NO. 1345 of 1938 on 10th July 1939. On 17th July 1940, respondent l applied to the District Munsif as the,

Judge of Small Causes for the attachment of the decree in O.S. No. 561 of 1934. This application was made in Execution petition No. 909 of

1940, arising out of S. C. . No. 1345 of 1938. On 8th August 1940, on this petition, the District Munsif issued an order on the plaintiff in O.S.

No. 561 of 1934 prohibiting him from receiving the decree debt until further orders of the Court and an order on the defendants prohibiting them

from paying the debt. On 16th August 1940 the District Munsif in Exn. Petn. No. 909 of 1940 ordered the decree in O.S. No. 561 of 1934 to be

attached and on 28th August, after the parties in O.S. No. 561 of 1934 had been served with the prohibitory orders, he made the attachment

absolute. On 7th January 1942, respondent 1 applied in Exn. Petn. No. 299 of 1942 to the District Munsif as exercising ordinary civil jurisdiction

for leave to proceed to execute the decree in O.S. No. 561 of 1934. On 12th February 1942 the petition was returned to him by the District

Munsif with the direction that he should file particulars of the attachment. On 23rd February respondent 1 returned the petition with an affidavit

giving the necessary particulars. The petition was again returned to him, because he had not filed a certified copy of the order of attachment. This

was supplied on 9th March 1942 and the petition for execution was taken on the file and numbered as 299 of 1942. On 22nd July 1942 the

District Munsif passed an order permitting respondent l to execute respondent 2''s decree. The defendants objected but their objections were

overruled. The District Judge on first appeal agreed with the District Munsif and this appeal is from the order of the District Judge. It has to be

borne in mind that the objection comes from the defendants in O.S. No. 561 of 1934 and not from the plaintiff. Their learned Counsel has stressed

the judgment of the Privy Council in Muthiah Chetti v. Palaniappa Chetti AIR 1928 P.C. 139 where it was held that a mere order for attachment is

not enough to create a valid attachment. Before there can be a valid attachment and rights created under it the attachment must have been effected.

He has also drawn our attention to Thiruvengada v. Vythilinga (1983) 6 Mad. 418 and Anil Kumar v. Jugal Kishore (1939) 43 C.W.N. 374. In

the former of these cases a Bench of this Court held that a decree for money is not a debt which can be attached and sold and that the procedure

laid down by the Code must be followed where a decree-holder desires to render a decree obtained by his judgment-debtor available for the

satisfaction of his own decree. In Anil Kumar v. Jugal Kishore (1939) 43 C.W.N. 374 the Calcutta High Court held that there can be no valid

attachment of a decree without a notice under Order 21, Rule 53 (1) (b). But the facts in that case were very different from the facts in this case.

The Courts were separate, not only in a technical sense, but actually and the objection came from the holder of the attached decree. He very

rightly said that a creditor who had obtained judgment against him could not proceed to execute his decree until he had taken the steps required by

the Code. The object of Order 21, Rule 53 (1) (b), is to prevent the holder of a decree executing it to the detriment of the person who has

obtained a decree against him. The notice contemplated by Order 21, Rule 53 (1) (b) merely prevents the execution being proceeded with until the

notice contemplated by this clause is cancelled or the holder of the decree sought to be executed or his judgment-debtor applies to the Court

receiving the notice to execute the attached decree.

In this case the District Munsif was fully aware of what had transpired in both the suits. Sitting as the Judge of Small Causes he ordered the

decree in O.S. No. 561 of 1934 to be attached and gave notice to the parties in that suit of that fact. Then sitting as the District Munsif exercising

ordinary civil jurisdiction he accepted the petition for execution by respondent 1 in O.S. No. 561 of 1934, after the order of attachment had been

filed in those proceedings. The position was that respondent 1 applied to the proper Court for an order of attachment of the decree and he applied

to the proper Court to be allowed to execute the attached decree. Supposing the District Munsif as the Judge of Small Causes had served upon

himself as District Munsif having jurisdiction in O.S. No. 561 of 1934 a written notice under Rule 53 (1) (b) the notice would have expired as soon

as respondent 1 applied in that suit to be allowed to proceed in execution. To say that there was no valid attachment because there was no written

notice issued by the District Munsif as the Judge of Small Causes to himself as the District Munsif having jurisdiction in O.S. No. 561 of 1934

would be pushing technicality beyond all reasonable limits especially when the holder of the decree in O.S. No. 561 of 1934 was a consenting

party to the action of his creditor. We consider that the matter was rightly decided below and the appeal must be dismissed with costs. We may

add that the reason why Kuppuswami Ayyar J. thought that Alagiriswami Pillai v. Lakshmanan Chetti AIR 1926 Mad. 371 had to be reconsidered

was because respondent 1 had asked to be allowed to add to his petition for execution a prayer directing the attachment of the decree sought to

be executed, and in support of this application he relied on Alagiriswami Pillai v. Lakshmanan Chetti AIR 1926 Mad. 371. As in our opinion an

amendment is not necessary to do justice between the parties it is not necessary to consider whether the decision in Alagiriswami Pillai v.

Lakshmanan Chetti AIR 1926 Mad. 371 was rightly decided.