Gopaldas Ravji vs Dalichand Motichand and Others

Baxi, J.—The material facts which gave rise to the suit out of which this appeal arises are briefly as under: Respondents 1 and 2 are the debtors of Respondent 3 who assigned the debt to the Plaintiff-Appellant by an assignment in writing dated 11-9-1949. After giving the Respondents notice of assignment the Appellant sued Respondents 1 and 2 for recovery of the debt interest and costs in the Court of the Civil Judge, Senior Division, Jamanagar on the strength of the assignment. He joined Respondent 3 as party Defendant and claimed a decree against him if his suit against the Respondents 1 and 2 could not be decreed. Respondent 3 did not contest the suit but the debtors Respondents 1 and 2 raised various defences against the Appellant''s suit.

One of their defences was that the assignment was void u/s 64, CPC as it was made during the continuance of an attachment of the debt in execution of a decree which one Gokaldas Dahyabhai had obtained in the same Court against Respondent 1. The learned Civil Judge rejected the Respondent''s rest of the defences but held that the assignment having been made during the continuance of the attachment was void u/s 64, CPC and dismissed the suit against these Respondents. However he passed a decree against Respondent 3. The Appellant has preferred this appeal against the learned Civil Judge''s decree dismissing his suit against them.

The debt came to be attached in the following manner. Gokaldas Dahyabhai obtained a decree for Rs. 33000/- and odd against Respondent 3 and in execution of his decree applied for attachment of the debt under Order 21 Rule 46 by praying for an order prohibiting the firm of Respondents 1 and 2 from making payment of the debt until further orders of the Court. A prohibitory order was accordingly issued by the Court on 30-4-1949 and served on the Respondents. The Appellant''s contention is that a valid attachment of the debt was not effected by the issue and service of the prohibitory order on Respondents 1 and 2. It was essential that the rest of the conditions prescribed by Order 21 Rule 46, CPC should have been complied with and as this was not (sic) where the passed it had no inherent jurisdiction done in this case, there was no effective attachment of the debt on the date of its assignment in his favour and consequently he could sue on the assignment.

The CPC lays down the procedure for effecting attachment of different finds of property and lays down conditions which must be fulfilled in each case before a valid attachment can be said to have been effected. In-Muthiah Chetti v. Palaniappa Chetti AIR 1928 PC 139 (A), Lord Shaw referred to Rules contained in Order 21, CPC relating to the attachment of different kinds of property and observed that the attachment itself was separate from the mere order of the Court and something had to be done or effected before attachment could be declared to have been accomplished. His conclusion is stated in the following words (p. 142):

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.

Now the question before their Lordships was as regards the validity of an order of attachment of Immovable property under Rule 54 of Order 21, CPC but the principles enunciated in that case apply with equal force to every attachment including the attachment of a debt under Order 21, Rule 46, CPC It is, therefore, essential to the legality of every attachment that there should be an appropriate order of attachment and that it should be published and executed strictly in accordance with the Rules laid down in the Code of Civil Procedure.

We shall next examine the provisions of Order 21, Rule 46. Now Rule 46 of Order 21 is divided into two sub-rules. Sub-rule (1) says that a debt may be attached by an order prohibiting the creditor from recovering the debt and the debtor from making payment until further orders of the Court. Sub-rule (2) requires that a copy of the order shall be affixed in a conspicuous part of the Court house and a copy shall also be sent to the debtor. A valid attachment of a debt under Order 21, Rule 46 therefore requires that:

(i) There should be a prohibitory order directed both against the creditor and the debtor and

(ii) The order should be published by

(a) affixing a copy of it in a conspicuous part of the Court house and

(b) by sending a copy to the debtor.

In- Narendra Prasad Sinha Vs. Maharani Janki Kuer, , it was held that failure to comply with the provisions of Rule 46(2) and omission to affix a copy of the order on some conspicuous part of the Court house renders the attachment ineffective. In- Keshavlal Madhavji Vs. Bibi Soghra and Others, ), omission to serve a copy of the order on the debtor as required by Order 21 Rule 46(2) was held to be fatal to the validity of the attachment. These cases are authority, if authority is at all needed after the Privy ''Council ruling in-''Muthiah Chetti''s case (A)'', for the proposition that an attachment of a debt is effective only if the conditions of Order 21 Rule 46 are strictly complied with.

Now the order of attachment was issued against Respondents 1 and 2 i.e. the debtors only and not to Respondent 3 i.e. the creditor. The first condition of Order 21 Rule 46 is, therefore, lacking in this case. Besides Respondents 1 and 2 examined the Court''s record clerk Prataprai Umiashanker who was called with the record of the Darkhast No. 23/1949 in which the attachment was made. The Respondents however could not show from the proceedings that a copy of the order was affixed in the Court house. The order was, therefore, not published in the manner required by Rule 46 and therefore no effective attachment was made by the mere issue of the order and serving a copy of it on the Respondents. The attachment of the debt was, therefore, ineffective and never came into existence and therefore its assignment in favour of the Appellant was effective and legally enforceable.

The learned Advocate for the Appellant urged that the attachment was not valid because the order was not served upon Respondent 3 who is the judgment-debtor of Gokaldas Dahyabhai. He referred to the provision of Rule 46(2) which requires that the order should be sent to the "debtor" and submitted that the word "debtor" appearing in it meant the judgment-debtor. The learned Civil Judge had overruled this objection and stated that a notice to the judgment-debtor was not a condition precedent to the validity of the attachment. He had relied on an observation in Note No. 15 to Order 21 Rule 46, Chitaley''s CPC for his dictum. In construing Rule 46(2) we have to bear in mind that what is attached is the debt and when the rule speaks of an order prohibiting the creditor from receiving the debt and the debtor from making payment or when it says that a copy of the order shall be sent to the debtor, it speaks of the "creditor" who is entitled to receive the attached debt and the "debtor" who is bound to pay it i.e., the garnishes who in this case are Respondents 1 and 2.

The judgment-debtor against whom execution is sought is entitled to receive the debt and he is the "creditor" who is prohibited from receiving the debt. Rule 46(2), however, does not say that a copy of the order shall be seat to him. The learned Advocate appears to have fallen into the error of thinking that the "debtor" and the "judgment-debtor" are the same persons on account of the similarity between the two words. But a little thought will suffice to show how that assumption is not correct. We, therefore, reject the learned Advocate''s contention that the attachment was ineffective on account of omission to serve a copy of the order on Respondent 3.

We, however, hold that the order of attachment is defective in form and is not proved to have been affixed in a conspicuous part of the court house and therefore there was no valid and subsisting attachment of the debt which could render ineffective the assignment on which the Appellant sues. The appeal is allowed. The learned Civil Judge''s decree must, therefore, be set aside and a decree against Respondents 1 and 2 should be passed as prayed in the plaint. The Respondents are ordered to pay the costs throughout.

Shah, C.J.

I agree.