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Judgment
Mishra, J.—House and premises bearing door No. 8, Ramasamy Maistry Street, Woods Road, Madras-2 was brought to sale in public
auction through court in E.P. No. 386 of 1989 on the file of the City Civil Court, Madras in pursuance of the decree passed in O.S. No. 9630 of
1985 against one A.S. Rao, the defendant in the said suit. On 5.4.1991 sale of the said property took place in public auction at court premises.
The appellant herein was declared the successful bidder for purchasing the said property for a sum of Rs. 6,00,000/-. She deposited a sum of Rs.
1,50,000/- being one-fourth of the sale amount with the senior bailiff of the City Civil Court and the balances he deposited with the Reserve Bank
on 19.4.1991 under challan No. B.R. 47 to the credit of O.S. No. 9630/1985. She filed a memo before the 10th Assistant Judge, City Civil
Court, Madras furnishing Non-judicial stamp papers to the value of Rs. 48160/- requesting the Court to issue the sale certificate. The executing
Court, on 18.7.1991 in E.P. No. 386 of 1988 confirmed the sale, and the sale certificate accordingly was issued to the appellant on 1.8.1991. The
appellant then applied against the Judgment debtor in the suit, that is to say, A.S. Rao, for delivery of possession of the property and the executing
court ordered for the delivery of possession to her. While the proceedings continued and culminated in the auction sale of the abovementioned
property, the instant suit in C.S. No. 567 of 1987 although instituted earlier by the plaintiff/respondent remained pending. A.S. Rao, the judgment-
debtor in O.S. No. 9360 of 1985 is one of the two defendants, the other being one Jayant V.Pai. The plaintiff/respondent has claimed a sum of
Rs. 13,89,422.15 with interest at the rate of 18.5% per annum against the defendants, jointly and severally, and sought sale of plant and machinery
described in the schedule to the plaint hypothecated by the defendants as security for due repayment of credit facilities. In the suit thus for a
mortgage decree as well as a personal decree against the defendants, jointly and severally, the plaintiff applied in Application No. 3448 of 1987
and a learned single judge, on 12.8.1987, ordered as follows:-
Application praying: this Hon''ble Court be pleased to order an attachment of immovable property owned by the first respondent-defendant as fully
described in the schedule hereunder pending disposal of the suit.
Schedule of Property Owned by the first Respondent/Defendant.
House and premises bearing door No. 8. Ramasamy Maistry Street, Woods Road, Madras (Old No. 7), in the Registration District of Triplicane
bearing R.S. No. 296/4 part (as per some deeds R.S. No. 296/2 also) Old Survey No. 34 part C.C. No. 4245 part old R.S. No. 293 and
bounded on the North by the houses of Govindarajulu and S P. Shanmugha Mudaliar and Kandaswamy Mudaliar and R.S. No. 296/1 and 296/3,
south by the House of Kiliammal and R.S. 290/6 East by the said Ramaswamy Maistry Street (R.S. No. 296/6) and West by the house of
Inayathullah Sahib (R.S. No. 296/2) to an extent of 1236 square feet with all buildings etc. with all casements, privileges, pathways, access, etc
and advantages.
This application coming on for hearing on this day the court made the following Order;
Interim attachment and notice.
The plaintiff having come to know of the proceedings in O.S. No. 9630/1985 filed a petition with an affidavit in the suit C.S. No. 567 of 1987
stating the fact that it has in mortgage with it the property described in schedule ''A'' of the plaint, which has been attached under the orders of the
Court before judgment vide order dated 12.8.1987 and accordingly alleging as follows:-
During the pendency of the suit it appears that one Sanjeevi a decree holder of an unsecured debt filed E.P. No. 386/88 for execution of the
decree obtained in O.S. No. 9630/85 on the file of City Civil Court, Madras. On a perusal of the decree it is seen that the said Sanjeevi had
obtained an ex parte decree on 14.9.1987. To recover the decree amount, the decree-holder sought the sale of the property mortgaged to the
plaintiff, and the same was sold to one Mrs. Nagarathinamma, the 3rd party respondent herein. The said Nagarathinamma had paid the
consideration offered in the auction and consequently a sale certificate was obtained from the Court, she filed an E.P. being E.P. No. 2092/91 for
delivery of possession and the same was taken by her through the police aid. The said auction purchaser is now in possession and enjoyment of the
property which is mortgaged to the plaintiff and also subject matter of the suit in C.S. No. 567/87.
The plaintiff thus asked for an interim injunction, restraining the third parry purchaser/appellant from intermeddling with the property mortgaged to
the plaintiff/respondent bank on various grounds including that the auction purchaser would not get valid title in respect of the mortgaged property
for the reason that the amount outstanding to the plaintiff was yet to be paid and the plaintiff being secured creditor would have first priority as long
as the mortgage is subsisting. The appellant herein responded to the Judge''s summons to implead her as party defendant in the suit and contested
with vehemence (the plaintiffs claim) that the auction purchaser would not get valid title in respect of the mortgage property. According to her, she
being a bona fide purchaser for the valuable consideration, who purchased through Court auction, cannot be denied her due and, ""that before the
property was brought to sale, the execution court had scrutinised and other papers viz. Encumbrance Certificate and other public records for the
purpose of sale of the said property and ultimately ordered the sale of the said property"".
The learned single judge has allowed the application to implead the auction purchaser as the third defendant in the suit and also granted
injunction against her, her men, agents from intermeddling with the property mortgaged to the plaintiff/respondent bearing No. 8, Ramawamy
Maistry Street, Woods Road, Madras-2.
Learned Counsel for the appellant has contended that the appellant is neither a necessary nor a proper party in the suit filed by the
plaintiff/respondent against A.S. Rao and another. She, according to the Learned Counsel has nothing to do with the controversy between the
plaintiff and the defendants in the suit or the plaintiff in O.S. No. 9630 of 1985 on the file of the City Civil Court, Madras or the defendant therein.
She responded to a court call for the sale of a property and followed strictly the rules in this behalf. The transaction concluded with the sale
certificate issued by the Court and the delivery of possession of the property sold by auction ordered by the Court. He has submitted that any
injunction when the property has been delivered to the appellant shall interfere with her rights including exercise of possession in accordance with
law. The trial court has not taken into account the fact that the appellant has become an innocent victim of the circumstances being ignorant of the
order of attachment and the pendency of the mortgage suit on the original side of this Court. The trial of a suit in a subordinate-Court proceeded
expeditiously and ended in a decree in favour of the plaintiff, who put the decree in execution and the appellant, unaware of everything except the
notice for the auction sale of the property in good faith invested a huge sum of money, that is to say, Rs. 6,00,200 and spent over and above the
cost of the registration of the sale deed, the expenses being not less than Rs. 48,160/-. There is no appearance on behalf of the
defendant/Respondent in this appeal. It appears they were present before the trial court at the hearing of the two applications, that is to say,
Application Nos. 779 and 5171 of 1991. They however, are not made parties in the appeal, it is said, because they were not made parties by the
plaintiff/respondent in the said two applications although the two applications were filed in the suit in which they are the main defendants. Learned
Counsel appearing for the plaintiff/respondent has, however, contended that all that a plaintiff can do is to move a court in a proper proceeding,
seek a mortgage decree and pending suit, attachment before judgment. The plaintiff/respondent did exactly the same by instituting the suit, seeking
a mortgage decree and describing in the schedule ''A'' of the plaint the property in question in full, by making an application for attachment before
judgment and by the order of the Court in Application No. 3448 of 1987 ensuring that the property in question is attached before judgment.
Learned Counsel for the plaintiff/respondent has submitted that the innocent look of the proceeding in the City Civil Court is a deception practised
on the court inasmuch as, at no time the attachment order or the pendency of the instant suit has been noticed in the said proceeding and a legally
valid order of a superior court has been totally ignored.
Before we go into the above, we first think it necessary to remind ourselves of the limitations of the instant proceedings including the appeal
before us and the relevant provisions of law which need a reference. It is not brought to our notice whether the schedule ''A'' property was the
subject matter of the suit O.S. No. 9630 of 1985 and the said suit was a mortgage suit. The instant suit, however, is a mortgage suit and the suit
property is fully described in schedule ''A''. The 1st defendant in the instant suit, A.S. Rao, was the sole defendant in the suit O.S. No. 9630 of
1985 and he possessed and lived in the house, that is to say the subject property. The Court issued order of attachment with respect to the subject
property in Application No. 3448 of 1987. The Ordinary Original Civil Jurisdiction of this Court is spelt out in the Letters Patent of this Court,
which Letters Patent also ordains that it shall be lawful for this Court from time to time to make Rules and Orders for the purpose of regulating all
proceedings in civil cases which may be brought before it and provided always that the Court shall be guided by making such Rules and Orders as
far as possible by the provisions of the CPC and the provisions of any law which has been made, amended or altered by competent legislative
authority in India. The Original Side Rules framed by this Court take care of the institution of suits, service of summons, appearance by the
defendant, etc. There are provisions in Order 37 as to mortgages and charges and the sale of property under the orders of the court in O. 38 for
the execution of decrees and orders, and under O. 39, which also has got a reference to the warrant of attachment and duration of the same, there
is Rule 29 which provides as follows:
Where the property sought to be attached is in the custody of another court, the execution application shall ask that, after attachment, the decree
may be transmitted to that court for execution; and if the attachment is made, and upon payment of the prescribed fees, the Registrar shall transmit
the decree accordingly. The applicant shall then apply to that court for execution. If the application is not made within the period limited by the
prohibitory order, or the same is refused, the court shall retransmit the decree to the High Court with a certificate stating whether any and what
proceedings have been taken in the former Court.
Further provisions as to the claims attached property, realisation of properties attached by seizure specific provision as to the sale of the property
under attachment before judgment are incorporated in the rules and a rule recast in the light of a judgment of this could in Saradambal Ammal v.
Sambanda Mudahal (1962 II MIJ 166 = 75 L.W. 238) provides as follows:-
O. 39, R. 38- The decree-holder may, in case is where attachment is effected in pursuance of a decree, apply at any time within three months from
the date of such attachment, by a written application to the Registrar in Form No. 126(A) for a warrant for the sale of attached property. In the
case of attachment before judgment, the decree holder may apply, by an Execution Application, for sale of the property (sic) direct notice of the
application to be given to any person or make such orders as he thinks fit.
There is a further safeguard in the Rules as to the rights of a judgment-creditor in R 39 thereof, which provides that the applicant executing the
decree shall file in court the affidavit prescribed by O. 38, R. 3 of the Original Side Rules of this Court which shall also state. ""the interest of the
judgment-debtor in the attached property, and whether any person other than the judgment-debtor has any, and what interest therein; and, in the
case of immovable property, that a search has been made in the office of the Registrar of Assurance of the District or sub-district, in which the
properly is situated, for not less than twelve years prior to the date of the attachment, a certificate of the result of the search shall be filed with the
said affidavit. This is so far a decree in a suit on the original side of the Court is concerned. These rules clearly warrant.
(i) transfer of the decree for execution to the court which has attached the property from before for execution and the execution of the decree by
the transferee court; and
(ii) before any property is sought to be attached and sold in execution of a decree, the applicant is required to make an application with an affidavit
stating, inter alia, whether any person other than the judgment-debtor has any interest and, if any, that interest therein and in the case of immovable
property that a search has been made in the office of the Registrar of Assurances of the district or sub-district, in which the property is situate, for
not less than twelve years prior to the date of the attachment showing that no person other than the judgment-debtor has interest in the property or
that besides the judgment-debtor only those mentioned in the affidavit have interest.
In the instant case, however, the suit on the original side is still pending and it is not in dispute the order of attachment before judgment in respect
of the subject property is still operative. The subordinate-court has concluded the trial in a suit, passed a money decree, which has been put in
execution by the judgment-debtor. The subject property, it is said was attached in the execution and sold by auction, the purchaser being the
appellant herein. The provisions of the Code of Civil Procedure, which are extended to the proceedings in the suits on the original side of this
Court, are applied in full to the courts subordinate to the High Court including the court which passed the money decree and completed the
execution thereof by the sale of subject property. Order 21 of the CPC in Execution of a civil court decree has specific provision in Rule 41
thereof for attachment of a property for the payment of money to the decree-holder, the person who is described as the judgment-creditor in the
Original Side Rules of this Court. This rule says:-
(1) Where a decree is for the payment of money the Decree-holder may apply to the court for an order that-
(2) Where a decree for payment of money has remained unsatisfied for a period of thirty days, the court may on the application of the decree-
holder and without prejudice to its power under sub-rule (i), by order require the judgment-debtor or where the judgment debtor is a corporation,
any officer thereof, to make an affidavit stating the particulars of the assets of the judgment-debtor.
(3). In case of disobedience of any order made under sub-rule (2), the Court making the order, or any court to which the proceeding is
transferred, may direct that the person disobeying the order be detained in the civil prison for a term not exceeding three months unless before the
expiry of such terms the court directs his release.
After statement of the assets received from the judgment-debtor pursuant to the Court''s order in exercise of the above power, the Court may
attach any movable property, other than the agricultural produce, in the possession of a judgment-debtor, or the agricultural produce in certain
circumstances or in cases satisfying such requirements of law as are necessary in this behalf even immovable properties such as land, building, etc.
by the procedure prescribed in this behalf. Attachment of immovable property is permitted in the circumstances enumerated in this behalf by
following the procedure under R. 54 of O. 21 of the Code, which, as amended by this Court, prescribes as follows:-
(1) Where the property is immovable, the attachment shall be made by an Order prohibiting the judgment-debtor from transferring or charging the
property in any way, and all persons from taking any benefit from such transfer or charge.
(1A) The order shall also require the Judgment-debtor to attend court on a specified date to take notice of the date to be fixed for setting the terms
of the proclamation of sale.
(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode. A copy of the order
shall be affixed on a conspicuous part of the property and on a conspicuous part of the Court house. Where the property is land paying revenue to
the Government, a copy of the order shall be similarly affixed in the office of the Revenue Divisional Officer of the area where the land is situated.
Where the property is situated, within cantonment limits, the order shall be similarly affixed in the office of the Local Cantonment Board and the
Military Estates Office concerned, and where the property is situated within the limits of a Municipality, in the office of the Municipality within the
limits of which the property is situated.
The attachment, however, is removed only after the satisfaction of the decree and R. 55 of this Order says,
Where the amount decreed with costs and all charges and expenses resulting from the attachment of any property, are paid into court, or the
satisfaction of the decree is otherwise made through the court or certified to the court, or the decree is set aside or reversed, the attachment shall
be deemed to be withdrawn, and in the case of immovable property, the withdraw shall, if the judgment-debtor so desired, be proclaimed at his
expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last proceeding rule.
There are detailed provisions in Order 21. which are applied to the execution of a decree including a rule by an amendment viz. R. 58-A which
says ""any order of attachment passed under Rr. 54 of this Order and any order raising the attachment by removal, determination or release passed
under R. 55, 57 or 58 of this Order, shall be communicated to the Registering Officer within the local limits of whose jurisdiction the whole or any
part of the immovable property, comprised in such order is situate"", and R. 58 which provides for investigation of claims to, and objections and
attachment of, attached property. This Rule provides as follows:-
(1) Where any claim is preferred to, or any objection is made to the attachment of, any property attached in execution of a decree on the ground
that such property is not liable to such claim or objection with the like power as regards the examination of the claimant or objector, and in all other
respects, as if he was a party to the suit:
Provided that no such investigation shall be made where the court considers that the claim or objection was designedly or unnecessarily delayed.
(2) Postponement of sale. Where the property to which the claim or objection has been advertised for sale, the Court ordering the sale may
postpone it pending the investigation of the claim or objection.
A further provision in R. 59 of this Order after 1976 amendment has contemplated slay of sale, where before the claim was preferred or the
objection was made, the properly attached had already been advertised for sale, the Court may, if the properly is movable, make an order
postponing the sale pending the adjudication of the claim or objection and if the properly is immovable by making an order that pending the
adjudication of the claim or objection the property shall not be sold or that pending such adjudication, the property may be sold but the sale shall
not be confirmed. There are several other provisions, which need no detailed mentioning, in this Order applicable to the execution of a decree. A
special mention. however may be made to R. 62 which says, where the Court is satisfied that the property is subject to a mortgage or charge in
favour of some persons not in possession, and thinks fit to continue the attachment it may do so, subject to such mortgage or charges, and R. 63,
which says where claim or an objection is preferred, the party against whom an order is made, may institute a suit to establish the right which he
claims to the property in dispute, but, subject to the result of such suit, if any, the order shall be conclusive. The power to order property attached
to be sold and proceeds to be paid to person entitled, sale by whom conducted and now made, proclamation sales by public auction, mode of
making proclamation, the time of sale, adjournment or stoppage of sale, etc. both with respect to movable and immovable property are separately
prescribed under these Rules and Rr. 89 and 90 are provisions giving to a judgment-debtor opportunity to avoid the sale by deposit of purchase
money and payment to the purchaser a sum equal to 5% of the purchase money and the decree amount to the decree-holder and for the reasons
of irregularity or fraud by showing to the Court that by such material irregularity or fraud in publishing or conducting the sale the judgment-debtor
has sustained substantial injury.
Our Original Side Rules have contemplated an elaborate procedure thus of the attachment of a property both before judgment and in execution
of a decree and sale of property, and in R. 1 of Order 38, it is said, subject to the provisions of O. 39 Rules 38 to 42, inclusive of these rules with
respect to the sale of attached property, a sale by public auction of any property, when directed in a suit or matter, shall be conducted in manner
prescribed by the said Order read with O. 21 of the Code of Civil Procedure. Thus, in the manner of conducting the sale of a property under
attachment, the Rules in Order 21 of the Code and in O. 38 of the O.S. Rules reconcile with each other and there is not much difference in
conducting a sale of a i property under attachment. Arrest and attachment before judgment procedure in O. 38 of the CPC has also contemplated
that the attachment shall be made in the manner provided for the attachment of property in execution of a decree and that the provisions of the
Code applicable to an attachment made in execution of a decree shall, so far as may be applied to an attachment made before judgment which
continues after the judgment by virtue of the decree in favour of the plaintiff and the rule in this behalf in the said order. A new rule, however, has
been added to the Code as R. 11B of O.38 by amending Act 104 of 1976, which reads as follows:-
Any order of attachment passed under R. 5 or 6 of this Order and any Order raising the attachment passed under R. 9 of this Order shall be
communicated to the Registering Officer within the local limits of whose jurisdiction the local or any part of the immovable properly comprised in
such order is situate.
If this provision is examined along with R. 39 of O. 39 of the Original Side Rules of this Court and notice taken of the Rule that before any
execution of a decree is effected a search is made in the office of the Registrar of Assurances of the district or sub-district, in which the property is
situate to find out whether any person other than the judgment-debtor has any, and what, interest therein for not less than twelve years prior to the
date of the attachment and a certificate of the result of the search is filed along with an affidavit prescribed by O. 38 R.3 of O.S. Rules, it will be
clear that all orders of attachment are required to be communicated to the Registrar of Assurances within the local limits of whose jurisdiction the
whole or any part of the immovable properly is situate to ensure that unaware of the attachment existing from before, any court does not commit
the mistake of ordering attachment of one and the same property and cause loss of such security for the benefit of the judgment-creditor who got
the property attached.
Learned Counsel for the appellant has urged before us:
i) The Court cannot enforce the attachment upon a property sold in auction duly authorized by the Court and a sale authorised by the Court is not
affected by the existence of any order of attachment. The subordinate Court''s order thus, according to him is final in so far as the sale of the
subject property is concerned. He has drawn our attention to S. 64 of the CPC which declares,
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, dividend or other moneys contrary to such attachment shall be void as against all claims enforceable under the
attachment"", to submit that unlike a private transfer or stay of the property attached, the instant transfer of the property in his favour has vested its
title in the appellant herein on and from the date of the sale becoming absolute. He has, for the said proposition relied on S. 65 of the Code of Civil
Procedure, which says ""where immovable properly is sold in execution of a decree and such sale has become absolute, the properly shall be
deemed to have vested in the purchaser from the time when the property is sold and not from the time when the sale becomes absolute,
ii) in any case, Learned Counsel for the appellant submits, the appellant cannot be called to answer any charge upon the properly in the instant suit
because the property has ceased to belong to the defendant who in the event of the judgment going against him alone, will be answering the charge.
Learned Counsel for the appellant has placed reliance upon a Bench decision of this Court in the case of Chamiyappa Tharagan alias Chinnappa
Tharagan (Family Manager) Vs. M.S. Rama Iyer, Receiver of the Estate of Kochappa Mannatiar''s sons Thirucha Mannadiar and Others, in which
it is said,
I think that the view that a court sale of attached property altogether releases it from attachment, is the right view and that full effect must be given
to it. Attachments preventing private alienation by the judgment-debtor are granted solely for the purpose of protecting the attaching creditor''s
right to bring to sale in execution, the right, title and interest in the attached property of the judgment-debtor and there is no reason for holding that
they continue to affect the attached property in any way when the interest of the judgment-debtor is no longer realisable in execution of the
attaching creditor''s decree, because, it has passed by a court-sale to an auction purchaser who, with his assigns, takes it free from the attachment
and with unrestricted rights of alienation. The judgment-debtor''s interest having gone, the attachment goes with it.
He has relied upon this judgment also for the proposition that the attaching creditor''s right to redeem any mortgage must also come to an end
together with the attachment itself on the sale to the auction purchaser in execution of the decree. It is said in the decision cited supra: ""Coming now
to the attaching creditor''s alleged right to redeem any mortgage must also come to an end together with the attachment itself on the sale of the
auction purchaser in execution of the decree. Thereafter the attaching creditor has no concern with the property, while on the other hand the
auction-purchaser has acquired an equity of redemption or right to redeem the mortgaged property that the judgment-debtor may have had in the
property, and there is no necessity or justification for holding that the attaching creditor''s right to redeem is transferred to the purchaser in the court
sale execution of his decree. The right to redeem conferred on an attaching creditor by S. 91 of the Transfer of Property Act is not, it seems clear,
based on any charge on the attached property for the amount of his debt putting him in the position of a subsequent mortgage as it is now perfectly
well settled that in India he acquires no such charge by the attachment. He is merely allowed, while the attachment is in force, to exercise any right
of redemption the judgment-debtor may be entitled to for the purpose of bringing the judgment-debtor''s interest to sate in execution of his decree
more advantageously than if it were sold subject to the mortgage. His position is quite different from that of a judgment-creditor is in England
whose right to redeem land is based on the fact that the Sheriffs return vests the legal estate in the creditor"".
It will, however, be relevant before we take notice of the ratio of the said judgment that the main question before the Court was the duration and
effect of attachment of an immovable property in execution of a money decree. The facts noticed in the judgment cited supra are stated as follows:-
The decree was transferred for execution to the Palghat Subordinate Court which attached the immovable properties of the family including the
properties now in suit, on 9th September, 1894. The attachment was struck off for want of process on the 4th November, following, and the
decree went back to the Munsif''s Court, where the decree holders recovered certain sums by way of rateable distribution in 1895 and 1897, and
thereafter kept the decree alive by application to that court for execution against the person until the 5th March, 1987, the day before the decree
would have become barred, when the transferee of the decree made a fresh application to the subordinate court in E.P. No. 31 of 1907 for
attachment and sale of the properties. There was no. fresh attachment but, sale was ordered artier overruling the objection tales raised by the
counter-petitioner, the present 7th defendant, and the attached properties were sold at court auction on 9th November, 1988 to a purchaser
through whom the plaintiff claims.
To understand his case it is necessary to see..It is sufficient to say that they had been sold free of incumbrances on 7th February, 1906, at a court
auction to one Raman Kutty in executing of a detect. in O.S. No. 299 of 1903 on one of several mortgages subsisting at the dale of the
attachment; and on 8th July, 1907 Raman Kutti sold the suit properties which were some of the properties so acquired by him to the present 7th
defendant one of the judgment debtors. On 24th July, 1907 the 7th defendant agreed to sell the property to the present 1st defendant who
instituted a suit for specific performance of the agreement in October, 1907, obtained a decree in January 1908, and a court conveyance on 2nd
February, 1909. In July 1907 when the 7th defendant agreed to sell he had no notice of E.P. No. 31 of l907, as notice to him was not ordered
until the 19th August, 1907.
The contest is, therefore, between the plaintiff claiming through the auction-purchaser in execution of the money decree of 1895, and the 1st
defendant a transferee from the 7th defendant who alter the sale of his equity of redemption in the suit properties under the mortgage decree in
O.S. No. 299 of 1903 brought them back from the auction purchaser and contracted to sell them to the 1st defendant before he had any notice of
the application which had then been filed for the execution of the old money decree of 1895.
In a concurring but a separate judgment Seshagiri Aiyar, J. has observed that the Legislature did not intend to include an attaching creditor
among the persons who have an interest in the property and added:
An attachment may be in a Munsif''s Court, the subsequent mortgage suit may be in a Sub-Court. It would be absurd to expect the mortgage to
enquire into the existence of attachments on this property before he institute his suit. The title which an auction-purchaser acquires under the
mortgage decree would be exceedingly precarious, if it subjects him to the necessity of acquainting himself with particulars regarding previous
attachment. So far as I am aware such information cannot be easily gathered. When we remember that the Judicial Committee in a very recent
case (vide Tilakari Lal v. Kedan Lal (1920) 40 Cal. l=57 I.C. 465 =47 I A 239 (P.C.) after very elaborate examination of the provisions of the
Registration Act have come to the conclusions that even registration is not noticed, I am not prepared to hold that an auction-purchaser under a
mortgage decree is affected by the existence of a previous attachment under a money decree on the equity of redemption.
A Special Bench Judgment of this Court which is the case The Dharapuram Janopakara Nidhi, Limited Vs. K. Lakshminarayana Chettiar, )
has considered mainly the effect of the attachment of the suit properties by a stranger decree-holder vis-a-vis the claim of adverse possession of
the respondent and the effect of the order dismissing the claim petition under O. 21, R. 58, CPC as it then existed, and also considered the
distinction between an attachment under S. 146, CPC (as it then existed) and the attachment in execution of a Civil Court''s decree and at once
place observed as follows:-
It seems to me that in view of the provisions of the CPC relating to the effect of an attachment and of the Form (No. 24) in Appendix E to the
Code, it is not possible to hold that the possession of a stranger is affected or disturbed by an attachment. The Learned Counsel relied on the
familiar use of the expression ''custodia legis'' when speaking of the effect of an attachment; it does not seem to me right to rely on this expression
as justifying the view that the property attached, even if in the possession of a stranger, passes into the possession of the court. At best, the
expression can only signify some kind control of the court over further dealings with the property by the judgment-debtor.
We shall refer to this Special Bench Judgment of the Court also in considering whether the plaintiff/respondent is justified in seeking addition of the
auction-purchaser as a party defendant in the suit. But to conclude on this aspect of the law, as the courts have generally said, we may state that an
order of attachment before judgment of any court has the effect only to prevent alienation and not to confer title by way of charge or otherwise, on
the attaching decree-holder. It is aimed only at private alienations and not involuntary alienations. There is no difference between an attachment in
execution of a decree and an attachment before judgment in this behalf and thus such attachment order is not a bar to a court sale in execution of
another decree and with the court sale the interest of the judgment-debtor passing to the auction-purchaser. In the judgment aforementioned, this
has been emphasised repeatedly by the courts and the judgments of this Court in the case of Chamiyappa Tharagan alias Chinnappa Tharagan
(Family Manager) Vs. M.S. Rama Iyer, Receiver of the Estate of Kochappa Mannatiar''s sons Thirucha Mannadiar and Others, has the august
company of the judgments of several other High Courts including the judgment of the Patna High Court in the case of Hamandan v. Pran Nath (
AIR 1921 Pat 499) and the judgment of the Calcutta High Court in the case of Kashy Nath Roy v. Surbamand Skaha (1885) 12 Cal. 317). The
above view has been reiterated by a Division Bench of the Karnataka High Court in the case of M/S. Chitalia bros. v. South Indian Bank, Trichur
(AIR 1988 Kar 59), which however, has also dealt with the aspect of addition of the auction purchaser as a party in the pending suit of the
mortgagee in which the attachment had been ordered earlier.
A learned judge of the Kerala High Court in the case of V.S.T. Venkita Reddiar v. S. Noordeen (AIR 1978 Ker 2) has also expressed the
same view and said,
... It must be taken as fairly settled that when a property is sold in execution of a money decree it cannot be sold again at the instance of the
decree-holder who had attached it before it was actually sold.
There would have been no difficulty, however in the instant case to take notice of the sale in favour of the auction-purchaser/appellant and
conclude on the above principle that the sale in her favour has become final, leaving only the purchase money available for either attachment or
appropriation by the plaintiff/respondent in the event of his success in the suit, but for two circumstances, (i) it is not in dispute before us that the
plaintiff/respondent is a mortgagee and thus the attachment being available as a charge upon the property or not, the mortgage as a charge is still
there on the property auction purchased by the appellant; and (2) the facts of the case reveal a disturbing trend of a suit on the original side of the
court and the order of attachment therein being ignored and a suit in a subordinate Court successfully defeating the order of attachment of a
superior court. As to the First above, a reference to the provisions under Order 34 of the CPC read with the relevant provisions in Chapter IV of
the Transfer of Property Act is enough for the conclusion that the property purchased by the appellant has suffered a mortgage by deposit of title
deeds in favour of the plaintiff/respondent and unless that mortgage is redeemed in accordance with law the purchaser''s title shall always be
subject to the mortgage. ''Mortgage by deposit of title deeds'' is defined under the Transfer of Property Act as follows:-
Where a person in any of the following towns, namely the towns of Calcutta, Madras and Bombay, and in any other town which the State
Government concerned may, by Notification in the Official Gazette, specify in this behalf, delivers to a creditor or his agent, documents of title to
immovable property, with intent to create a security thereon, the transaction is called a mortgage by deposit of title deeds.
With such a mortgage in its hand the plaintiff/respondent has acquired a right to sue for the mortgage money and treat the mortgage as a charge
upon the property as prescribed in S. 100 of the Transfer of Property Act, which says:
Charges: Where immovable property of one person is by Act of parties or operation of law made security for the payment of money to another,
and the transactions does not amount to a mortgage, the latter person is said to have a charge on the property; and all the provisions hereinbefore
contained which apply to a simple mortgage shall, so far as may be, apply to such charge,
and which read along with Rr. 1, 12 and 15 of O. 34, CPC has continued the charge of mortgage of the plaintiff/respondent. To the extent
therefore, of the charges, which the transfer in favour of the appellant has not extinguished, the appellant may be a necessary party, for, it is she
who has for the reason of the auction-sale, the title of the defendants and to the extent of the plaintiffs/respondent''s charge she thus has stepped
into the shoes of the defendants. Irrespective, therefore, of the subsistence of the attachment and its effect upon the auction sale as ordered by the
Sub Court there can be no mistake of law involved, if the auction-purchaser is added as a party-defendant in the mortgage suit. There are
indications of this approach being correct in law in the Special Bench Judgment of the Court in the case of D.J. Nidhi v K.L. Chettiar (Supra) and
in another judgment in the case of Vaithilinga Pandara Sannidhi Audhinakarthar Tiruvaduthurai Adhinam Vs. Sadasiva Iyer and Others, which has
been followed by a Bench of the Karnataka High Court in the case of MIS. Chitalia Bros. v. South Indian Bank, Trichur ( AIR 1988 Kar 50).
We have referred to the provisions of the Original Side Rules of this Court as to how the attachment orders, both before judgment and in
execution of a decree, are issued and kept in force and to the relevant provisions of the CPC which provide for making the orders of attachment
before judgment as well as in execution of a decree and the steps which should necessarily be taken to avoid any chance of fraud or collusion
between the parties in a subsequent suit. If the provisions in this behalf in the CPC were followed by the City Civil Court, the auction-
purchaser/appellant, if she is a bona fide purchaser, would have become aware of the attachment and the mortgage and would have thus desisted
from purchasing the property and involving her money in the transition. We do not. however, in this case, see any reason to find fault with the
procedure in the City Civil Court, because the mistake has been found in following the procedure prescribed for the enforcement of the orders of
attachment and their continuance by the Original Side Rules, of this Court. The command of the Original Side Rules will remain in vain if such
services and enforcements by the Sheriff are made without ensuring the compliances to the Rules as to the date and manner in which the Warrant
of attachment is executed, or is not executed, due publicity has been given as required by the rules to the order of attachment including that due
information in this behalf is given to the office of the Registrar of Assurances of the district or sub-district, in which the property is situate or not.
To our queries the Master of the Court has submitted two reports dated 11th August, 1993 and 20th August,1993. In the report dated 11th
August, 1993 he has stated as follows:-
In case of attachment of immovable properties, if court orders interim attachment and notice, the paper would be sent to E.P. clerk after payment
of batta of Rs.10/- by the plaintiff/decree-holder. The order of attachment wilt be prepared by the execution cleric and the copies of the said order
would be sent to Sheriff Section for effecting the attachment. The Deputy Sheriff in charge of Sheriff Section on behalf of Sheriff of Madras would
authorise a Bailiff to execute the warrant of attachment of immovable property accompanied by the applicant/plaintiffs agent to identify the property
mentioned in the schedule.
The following procedure is adopted under O. 21, R. 54 of C.P.C.
The Bailiff shall proclaim the attachment on or adjacent to such properties by beating Tom or other customary mode.
The Bailiff shall affix the order of attachment on conspicuous part of the property.
The Bailiff shall also affix the order of attachment in the Office of Corporation/Municipality within the limit of which the property is situated, court
notice Board and also affix the order of attachment in the concerned Collector''s Office.
A copy of the order of attachment would be served on the defendants or their agents available in the property and in their absence the same will
be affixed.
As per O. 38, R. 118, the order of attachment should be communicated to Registering Officer within the local limits of jurisdiction.
Subsequently the Bailiff will prepare a report and submit the same with the Deputy Sheriff in the manner in which the property was attached under
the Orders of the Court.
If the property is situated outside the jurisdiction of the Hon''ble High Court, the Execution Clerk will send the attachment order to the concerned
District, Court on payment of transmission charges by the Decree Holder''s/Applicant and the District Court will effect the attachment and send the
report to this Hon''ble Court, the manner in which the attachment was made.
In the report dated 20.8.1993 has stated as follows:
It is most respectfully submitted that this Court is not following the procedure of informing any other court of competent jurisdiction regarding the
existence of an order of attachment of any immovable property.
It is further submitted that attachment of immovable property is effected by the Sheriff Office. The Deputy Sheriff will empower the Bailiff to
execute the order of attachment. The plaintiff or his agent will accompany the Bailiff for identification of the property sought to be attached. The
Bailiff will go to the Police where the attachment is to be effected along with the plaintiff or his agent. The attachment of the immovable property is
effected in the following Modes:
The property will be attached by beat of tom-tom where the property is situated. Then the Bailiff will read loudly the prohibitory order in front of
the immovable property and affix a copy of the warrant of attachment on the conspicuous part of the property and he will serve the attachment and
prohibitory order on the Defendants/Respondents if they are available at the premises at the time of effecting attachment.
Then a copy of warrant of attachment will be affixed on the Notice Board of the Corporation of Madras, Notice Board of the Collector''s Office
and on the Court Notice Board respectively.
After complying the above modes, the Bailiff will submit his report along with the warrant of attachment. The above mentioned procedure is
followed on the Original Side of this Court
From the information ascertained from the Sheriffs Office, I came to know that the above mentioned methods were followed in the instant case.
The Rule prescribed under O. 38 R. 11(b) has not been followed by this Court. The Order of attachment was not communicated to the Sub
Registrar within whose jurisdiction the property is situated.
It is submitted that in the instant case i.e. C.S. No. 567/87, the order of attachment was made on 12.8.87 and the attachment was effected on
19.8.1987. Subsequent to that attachment the subject matter of the property in question was sold in a court auction sale by the City Civil Court,
Madras. The order of attachment dated 12.6.87 was not communicated either to the competent Court or to the concerned Sub Registrar within
whose jurisdiction the property situates"".
The office of the Sheriff in the City of Madras, some may feel, is a legacy of the British Raj, but the scheme of the Original Side Rules of this
Court shows that he is no less a functionary controlling the Court''s machinery of the service of warrant, summons, notice, etc. Now, in course of
time, it became more or less an office of a decoration only, and a Deputy who initially was appointed only to act as authorised by the Sheriff to
ensure execution of all writs, summons, rules, orders, warrants, and processes of the Court, became a repository of power, however, is not our
concern today. A book published in the year 1946 and titled ''Sheriff of Madras'' has got a passage which read as follows:-
The Judges of Madras High Court favoured the proposal for the appointment of a permanent Deputy Sheriff. Their Lordships observed:
The Sheriff is appointed only for a year. He is a layman not conversant with the work of the Court. In the circumstances his control over the
process-serving and execution staff is purely nominal. The department being under his charge is due to tradition and to historical reasons and has
no justification. The system of serving through the Sheriff is a survival of the old English practice of the Supreme Court. A permanent Deputy
Sheriff should be liable to removal on a change by the Sheriff. That is the English Practice'' (Notes from Administrative Records, High Court,
Madras).
The Government also adopted the proposal in order to ensure continuity. The Sheriff was hence forth to be honorary. The process-serving
establishment came under the control of the Deputy Sheriff in 1924. The Deputy Sheriff is responsible for the quick and efficient service of process
and the execution of warrants and the general supervision of the working of the Sheriffs Office. Under the Deputy Sheriff there is an office
establishment and there are one European and three Indian bailiffs. The bailiffs are to serve the processes received in the office of the Sheriff and
have also to carry out the duties connected with the various kinds of proceedings in execution. The quarterly jury summonses as well as the Crown
subpoenas to the sessions as well as they are served by the bailiffs. The service of these processes takes up much of the time of the bailiffs owing
to evasion and absence from address given of the parties. A summons is seldom served on a party at the first attempt and in most cases service
involves a search for the party. After service is effected bailiffs enter the endorsement of service on the summons and in the Office register and
have also to make up affidavits of service. In the case of executions also, bailiffs have to make similar entries on warrants end in the registers. The
execution of a warrant of attachment of movable property keeps a bailiff occupied for several hours and involve heavy work. In the case of a
personal arrest the bailiff has to keep charge of the prisoner and produce him before the judge and take him to the Civil Debtor''s caol, which is
also now housed in the Penitentiary, Madras.
We are informed that ever since the Deputy Sheriff has been the controlling authority and responsible to ensure the service of the processes and
the warrants of attachment of both movable and immovable properties. We have detected in the instant case that proper care has not been taken
to ensure the effectiveness of the order of attachment before judgment. The fault, however, cannot be found in the mechanism, but it is surely
somewhere in the personnel who have to implement it. It is reported by the Master of the Court that the order of attachment was not
communicated to the subordinate courts or the Registrar or the Sub-Registrar and, in fact, it is not being communicated at all. It would thus be not
the only case which would be in the grip of a situation of uncertainty of enforcement of a civil court decree and the benefits that the auction
purchaser must get. There might be many cases of this kind and there may be many in the future.
With this concern in particular we propose in the instant case to recommend immediate steps for ensuring a coordinated action for the service
of warrant, summons, notice, etc. of this Court between the officers of the Court and the Deputy Sheriff and the bailiffs and the latter must firmly be
told that they existed only to ensure effectiveness of writs, warrants, summons, etc. of this Court and for no other purpose. This can be achieved
by a specific instruction issued to the Deputy Sheriff to report compliance of the writ, warrants, summons of this Court within one week and to
submit each month a detailed report to the Master of the Court about the service and the pendency of the writs, warrants, summons, etc. The
Master of the Court in turn in such a situation, however, will be answerable to the Court for each default and fault in the implementation of the writ,
warrants, summons, etc. The Court accordingly is directed to take immediate steps to evolve a method of co-ordination between the office of this
Court and the Deputy Sheriff and Bailiffs and report. For the reasons aforementioned, we find no merit in the appeal. The appeal is accordingly
dismissed, but without costs.