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Judgment
S. Swamikkannu, J.—This is an appeal filed by the plaintiff in O.S. No. 49 of 1978 on the file of the Court of the Second Additional
Subordinate Judge of Pondicherry, against the judgment of the trial Court dated 7th September, 1979, dismissing the suit.
The case of the plaintiff-appellant in the lower Court was as follows : The second defendant sold the suit house to him for Rs. 45,000/- under a
sale deed dated 11.8.1976. At the time of execution of the sale deed, the second defendant produced an encumbrance certificate which showed
that a sum of Rs. 20,000/ had been borrowed by the second defendant from one Kanagalingam on 4.9.1973. The encumbrance certificate did not
disclose any other encumbrance. The plaintiff took possession of the house. While so, on 8.2.1978, the plaintiff found a sale notice affixed on the
suit property, which proclaimed for sale the suit property in E.P. No. 314 of 1977 on the file of the Sub-Court, Pondicherry. The above sale
notice disclosed the second defendant as the judgment-debtor in the said execution petition which had been filed in execution of a decree obtained
by the first defendant against the second defendant in O.S. No. 91 of 1973 on the file of the Sub-Court, Pondicherry, for a sum of Rs. 10,407/-.
The sale notice also disclosed that the suit property had been attached before judgment by the first defendant in I.A. No. 541 of 1973 in the said
suit. At the time of the sale the second defendant did not disclose to the plaintiff any such attachment by the court and the plaintiff too had no
reasonable possibility to have knowledge of the said attachment. The above attachment effected in the suit was made absolute since the second
defendant submitted to a decree in that suit. The very contents of the order of attachment as disclosed in the sale notice, shows that the court, in
the earlier suit by the first defendant, had not applied its mind in passing the order of attachment and making it absolute. The above order is not
conditional in nature as prescribed by Order 38, Rule 5, Code of Civil Procedure, and hence the order of attachment is null and void. According
to the plaintiff, no attachment had been made on 2.5.1973 and the attachment was not also made as required under the Rules governing the
effecting of attachments before judgment. Therefore, the order of attachment is ab initio void and not enforceable in law. It appears to have been
effected in collusion between the first and second defendants in a fraudulent manner in order to deceive a third-party. The plaintiff came to know of
the said fraud committed only On 8.2.1978 and has filed the suit to set aside the said attachment in I.A. No. 541 of 1973 as null and void.
The second defendant did not contest the suit, but remained ex parte. The first defendant filed written statement and contended as follows : The
appellant-plaintiff has no locus standi to file the suit against the first defendant. The first defendant filed the earlier suit O.S. No-91 of 1973 for
recovery of moneys due by the second defendant under a chit, along with interest and costs. Therein it filed I.A. No. 541 of 1973 alleging that the
second defendant was trying to sell away the suit property in order to defeat the first defendant and the Court, after consoling the plaint and the
petition in that suit, passed an order of attachment which had been effected according to law. The second defendant had not taken any steps to
have the said attachment vacated and had not also chosen to contest the suit since the claim was bona fide. From the date of the attachment the
property had been kept in custodia legiss for being dealt with by the Court. Vile so, the judgment debtor, viz., the second defendant had no right to
execute any sale deed in favour of a third-party concerning the said property, and the alienation made by the judgment-debtor during the pendency
of the attachment in favour of the plaintiff cannot confer any right on him. The purchas of the property by the plaintiff from the second defendant
during the pendency of the proceedings taken by the first defendant, is barred by the principle of lis pendens as contemplated by Section 52 of the
Transfer of Property Act. The plaintiff''s purchase of the property was well after the attachment effected by the first defendant and after it was
made absolute and also after a decree was passed by the Court in favour of the first defendant. Lis pendens continues in respect of the property till
the decree is satisfied by way of execution. The first defendant repudiated the plaintiff''s allegation of collusion between the first and second
defendants in bringing about the attachment. The plaintiff had no interest in the property when the attachment was effected as tie has purchased the
property only on 11.8.1976, According to the first defendant, after it filed R.P. No. 50 of 1976, the second defendant, without disclosing the
attachment prevailing upon the property, has stealthily sold it to the plaintiff. The said sale is not valid and the plaintiff has been cheated by the
second defendant. If at all, the plaintiff could file a suit only against the second defendant for any loss incurred by him by purchasing the property
for consideration without being informed of the attachment subsisting on the property. The lower court had applied its mind in passing the order of
attachment and in making it absolute. Being a third party to the said earlier proceedings, the plaintiff cannot contend that the court had not applied
its mind. The suit of the plaintiff is not maintainable in view of the provisions of Section 52 of the Transfer of Property Act and also since the
property was in custodia legis; ever since the date of attachment. The first defendant put the plaintiff to strict proof of the allegation of collusion
made in the plaint. Since the suit has been filed by the plaintiff after three years from the date of attachment, the suit is barred by limitation. The first
defendant prayed for the dismissal of the suit.
On the above pleadings, the lower Court framed the following issues for trial:
(1) Whether the attachment order in I.A. No. 541 of 1973 passed by the Principal Sub Judge is null and void? and
(2) To what relief is the plaintiff entitled?
The plaintiff examined himself as P.W.I and filed Exs. Al to A6 viz., copy of the sale deed dated 11.8.1976 executed by the second defendant
to the plaintiff, the sale is their in the earlier suit, copies of orders dated 4.7.1974 and 26.4.1973 in I.A. No. 541 of 1973 and the means affidavit
filed in E.P. No. 50 of 1976. On its behalf the first defendant examined one Gurunathan as D.W. 1 and filed Exs. B1 to B4, viz., the petition in I.A.
No. 541 of 1973, copy of the attachment warrant in the earlier suit, copy of the counter filed in R.P. No. 50 of 1976 and the original amin''s
warrant and the amin''s report in the execution proceedings. On a consideration of the above evidence, the lower Court answered the first issue in
the'' negative. In other words, it held that it will not be in the interests of justice to set aside the attachment effected in O.S. No. 91 of 1973. It
further held that the plaintiff has a right to file the suit. But, in view of the finding on Issue No. 1, it dismissed the plaintiff''s suit and directed the
parties to bear their respective costs. It is to canvass the said decision of the trial court, the plaintiff has preferred the present appeal. It is
contended on behalf of the appellant that the lower court had not applied its mind and had not properly appreciated, the evidence on record with
respect to the provisions of Section 52 of the Transfer of Property Act and in the light of the provision of Order 38, Rule 5, Code of Civil
Procedure.
The points that arise for consideration in the appeal are:
(1) Whether the court had properly appreciated the evidence on record with reference to the question whether the order in I.A. No. 541 of 1973
can be set aside or not? and
(2) Whether the suit by the plaintiff out of which this appeal has arisen was filed in time since it was presented on 20.2.1978?
Even at the outset, this Court is of the view that it is not either for the plaintiff or for the defendant to say anything about the application of the
mind by the Court. It is for the higher forum, namely the appellate forum and the revisional forum or other higher forums of judiciary to say anything
about the mind of a Court. By casually observing in the above manner both in the plaint and in the grounds of appeal regarding the order in I.A.
No. 541 of 1973 and that the Court passed the said order without applying its mind is something which goes to the root of the question as to
whether the parties have committed contempt of Court or not in using such unholy expressions regarding the mind of the Court. When the defil
itself knoweth not the mind of man, a Judge, who is a superior authority in receiving evidence, recording the same and delivering Judgment in a
dispute put forward before him by either side, is an institution of sanctity by himself. Before such a sanctified forum, the plaintiff should not have, in
a casual or ordinary manner made expression as to the application of its mind by the Court, since the Judge is always thinking about the evidence
on record with reference to the arguments of either side as well as the application of the provisions of any enactment that have to be applied with
respect of the evidence so as to come to a decision on a case. Such being the holy work that is actually done by a Presiding Officer of a Court, for
the sake of a mere remedy of setting aside an order of attachment, if the parties are to indulge in such scathing remarks against the Presiding
Officer who passed an order in an application regarding attachment, is something against the very dignity of the forum, namely the Court of Law,
however big or small it may be. This kind of attitude by a citizen, the plaintiff and the first defendant in this case, the plaintiff saying that the Court
had not applied its mind and the first defendant saying that the Court did apply its mind, as if they are sitting in judgment over the application of the
mind of the Court, is all beyond the comprehension of a party who has come to the Court seeking a remedy. It is further very unfortunate that such
kind of allegations are made and that are being drafted by the Advocates concerned who are of the Court. In the instant case, we find that both
sides have been represented by Advocates. The above observation is made to pull up persons who are callous and indifferent in their attitude
towards courts.
Now, coming to the issues invovled in the appeal before me, I find that the plaintiff had gone into the witness box and had deposed
comprehensively about the order of attachment before judgment obtained by the first defendant in the earlier suit. The said order of attachment was
made absolute on 4.7.1974 and since the second defendant submitted to a decree, the suit was also decreed on the same date. The plaintiff herein
purchased the property attached in I.A. No. 541 of 1973, only two years after the said date, i.e., on 11.8.1976, under Ex. A1. Thus, we find that,
in any event, the appellant cannot validly represent that the parties to the earlier suit colluded with each other and obtained the order of attachment
in order to defraud the plaintiff-appellant and the plea of fraud '' alleged by the appellant cannot be upheld.
It is contended on behalf of the appellant that in the instant case the limitation period is ten years according to French law and that since the
French law regarding limitation continues to be applied to the Union Territory of Pondicherry, it has force in this matter. In this regard the decision
in Goodman and Company Vs. R.S. Thirunavukarasu, , was relied on by the appellant''s counsel. It is seen that in that case the circumstances were
different from those obtaining in the present case as brought out from the evidence. In that case, the suit transaction took place in 1965 when the
French law was in force and hence the High Court held that to the suit filed in 1971, the Limitation Act of 1963 was not applicable. But, in the
instant case, the attachment took place in 1973, i.e., five years after the CPC came to be introduced to the Territory of Pondicherry. Hence that
decision cannot be of help to the appellant in this case.
Another decision that has been cited with respect to the question of limitation is the one reported in Sahul Hameed Rowther Vs. P.R.S.A.
Arunachalam Pillai and Another, . It is relevant here to note that the prayer in that case was for declaration that the assignment of a decree was
valid and it did not relate to any order of attachment before judgment as in the present suit.
On the other hand, Learned Counsel for the first defendant referred to the decision in The Pannaji Devi Chand, a Marwadi Firm and
Company, consisting of the following Partners, Punnamchand and Others Vs. The Firm of Senaji Kapur Chand, , wherein it was held that Article
29 of the Limitation Act of 1908 (Article 80 of the 1963 Act) would apply to all attachments before judgment, when such attachments are wrong
both for want of jurisdiction and for want for sufficient grounds. The above Articles relate to compensation for wrongful seizure of moveable
properties through legal process. Learned Counsel for the plaintiff-appellant represented that the above decision would not apply to the present
case as it related only to move-able properties and not Immovable properties as in the present case, and I agree with the said contention. The
above Article refers only to the relief of compensation, and not to setting aside of an order of attachment before judgment. Regarding limitation,
Learned Counsel submits that Article 137 of the 1963 Act applies to this case. But, that Article would apply only to applications for which no
period of limitation is provided, and not to suits, and this contention has to be rejected. Thus, Article 113 applies to this case as it relates to suits
for which no period of limitation is provided in the Act.
The relief in the suit is to set aside the order of attachment before judgment passed on 26.4.1973. The main question regarding limitation is the
point from which it begins to run. In this case, limitation would begin to run from when the right to sue accrues, which right accrues from the date
when the cause of action arises. That right of the plaintiff must be in existence at the time the suit is filed, and that right must have been infringed or
at least threatened to be infringed. Such a right and its infringement would constitute the cause of action which would give rise to the right to sue.
The right of the plaintiff-appellant to the suit property started on 11.8.1976. The said right was clearly unequivocally infringed when the first
defendant took steps to bring the property to sale in execution. The plaintiff came to know of that fact only when the sale proclamation notice was
affixed on the door of the suit property on 6.2.1978 in pursuance of the execution proceedings. The plaintiff had knowledge of the sale
proclamation and immediately thereafter, he filed the suit on 20.2.1978. He was not a party to the earlier suit filed by the first defendant and the
execution proceedings in pursuance of the decree therein. That decree was also not registered, nor was any change created therein on the suit
property. The debt due by the second defendant to the first defendant was also not shown in the encumbrance certificate which the second
defendant produced to the plaintiff. Therefore, it followed that the plaintiff had no reason to know of the suit or the attachment before judgment or
even the decree in that suit and even the execution proceedings till he came to know of all this only from the sale proclamation notice affixed on the
door of the suit property. Hence it is clear that the right to sue accrued to the plaintiff on 6.2.1978, and that being the case, the suit filed by him on
20.2.1978 was well within time.
Now, coming to the evidence on the question whether the order passed by the Subordinate Judge in I.A. No. 541 of 1973 on 26.4.1973
regarding attachment is null and void, the appellant''s case is that the order is illegal and cannot be sustained. On behalf of the appellant, the
decision on Vasavaaba v. P.S. and Sons AIR 1973 Mys. 291, was cited to contend that the provisions relating to attachment before judgment are
mandatory and the Court had not ordered any conditional attachment and neither any notice under Order 38, Rule 5, nor any prohibitory order
under Order 21, Rule 54 was served on the defendant and as such, the attachment is ineffective.
Order 38, Rule 5, Code of Civil Procedure, read as follows:
Rule 5: (1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the
execution of any decree that may be passed against him,
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the
defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the
disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree,
or to appear and show cause why he should not furnish security.
(2) The plaintiff shall unless the Court otherwise directs, specify the property required'' to be attached and the estimated value thereof.
(3). The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
(4) If an order of attachment is made without complying with the provisions of Sub-rule (1) of this rule, such attachment shall be void.
In the instant case, the order of attachment before judgment reads as follows ""A.B.J. and Notice"". The Court had not ordered any conditional
attachment and it has not also passed any order under Order 21, Rule 54, C.P.C. The Office of the Court had made use of a form in Tamil
wherein the provisions of Order 38, Rule 5 as well as Order 21, Rule 54 have been complied with. The argument of the appellant''s counsel is that
the office cannot go beyond the short order passed by the Court, Viz. ""A.B.J. & Notice"" and expand its form suo motu. But, the office has made
use of only the form meant for attachments before judgment as a routine matter. Anyhow, the ministerial officer of the Court has not been examined
in this behalf.
It is contended on behalf of the appellant that the report Ex. B4, shows that that the amin had effected the attachment on 2.4.1973 according
to the date found in the report itself, and added that since there was no order of attachment on 2.4.1973 or earlier, the attachment effected is
illegal, invalid and inoperative. This contention cannot be upheld because the date 2.4.1973 put by the amin in four places in the report is only an
error, since the second defendant himself has signed the report as a witness to the attachment and his signature therein is dated 2.5.1973.
Moreover, the Sheristadar of the Court has signed in the Tamil form prescribed for attachment before judgment on 28.4.1973. The petition for
attachment was given on 25.4.1973 and the Subordinate Judge has passed orders on 26.4.1973 and therefore, the Amin could not have executed
the warrant on 2.4.1973 on which date there was neither a petition nor an order. The Amin was also not examined by the appellant to explain the
above error.
It is strenuously contended on behalf of the appellant that the first defendant was not diligent in executing the decree obtained by it in O.S. No.
91 of 1973. It filed the first execution petition only on 6.4.1976 for the arrest of the judgment-debtor and the same was dismissed on 7.4.1976 as
not pressed at that stage, without reservation to file a fresh execution petition and therefore, according to the appellant, the first defendant had
abandoned its right to file a fresh execution petition on the basis of the attachment. Learned councel further submitted that the above conduct on
the part of the first defendant shows that it had not enforced the order of attachment. This contention cannot be upheld because the decree-holder
in E.P. No. 50 of 1976 had not abandoned its right to recover the decree amount. The mere fact that the first defendant did not press the earlier
execution petition would not mean that it waived its right to execute the decree. A decree-holder can file an execution petition for the arrest of the
judgment-debtor and if he does not succeed in realising the decree debt, he can file another execution petition to bring the property of the
judgment-debtor to sale for the realisation of the decree-debt, especially when the property is already under attachment.
In the present suit also, the order of attachment made by the Court is not void because it was made in 1973 prior to the amendment of the
CPC in 1976 which brought Sub-rule (4) to Rule 5 of Order 38, which stated that an order of attachment without complying with the provisions of
Sub-rule (1) of Rule 5 shall be void. It is also to be noted that the attachment was made absolute on 4.7.1974 when the suit was decreed on the
second defendant submitting to a decree. It is contended for the appellant that the Court cannot make absolute an order of attachment because the
second defendant had submitted to a decree. This contention cannot be countenanced since it is against the principles of law.
It is contended for the respondents that the sale deed in favour of the appellant is null and void and ineffective because the second defendant
sold the house to the appellant at a time when the attachment was in subsistence. Section 52 of the Transfer of Property Act reads as follows:
During the pendency, in any Court, having authority within the limits of India excluding the State of Jammu and Kashmir or established beyond such
limits by the Central Government, of any suit or proceeding which is not collusive and in which any right to Immovable property is directly and
specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of
any other party thereto under any decree or order'' which may be made therein, except under the authority of the Court and on such terms as it
may impose.
Pendency of any suit"" occurring in the above Section is defined under the Explanation to the section, as including the time of the presentation of the
suit and extending upto the time when the final decree or order is passed therein and even to the time when the decree or order is completely
satisfied or discharged. In the instant case, we find that the reply of the appellant''s counsel is that the above sale deed is valid because the order of
attachment is null and void. It has to be noticed that the appellant was cheated by the second defendant who failed to disclose the attachment
subsisting on the suit property and sold the property to the appellant when the property was subject to lis pendens by reason of O.S. No. 91 of
1973. Thus, we find that Ex. Al sale deed is hit by Section 52 of the Transfer of Property Act. The person fully responsible in this case is the
second defendant who cheated both the appellant and the first defendant. He has remained ex parte in the suit. He has no right to attack the order
of attachment because he submitted to a decree. The -appellant has no right to ask for setting aside the order of attachment because his sale deed
executed by the second defendant is not valid. The Court cannot give relief to the plaintiff and, at the same time, guarantee execution of the decree
obtained by the first defendant in O.S. No. 91 of 1973. In the instant case, we find that the circumstances are such that the second defendant,
whose property was attached in the earlier suit, submitted to a decree in that suit and the same was decreed on 4.7.1974. The decision in
Kedarnath Kanoria and Others Vs. Khaitan Sons and Co., , was cited by the appellant''s counsel. But the Court cannot follow the lines adopted in
that case. In the case before the Calcutta High Court, the property was sold during the pendency of the suit. In the present case, the very property
attached was sold before the execution of the decree was over. The appellant purchased the property when the first execution petition was
pending. If the attachment were to be set aside, the Court cannot order a fresh attachment at this stage, because O.S. No. 91 of 1973 has been
disposed of and a consent decree has been passed. Therefore, I think that it will be just and equitable to give preference to the decree which is
earlier in time, compared to the date of the invalid purchase of the suit property by the appellant. It is also relevant that the order of attachment
before judgment in question was passed before the inclusion of Sub-rule (4) of Rule 5 of Order 38, which stated that an order of attachment made
without complying with the provisions of Sub-rule (1) of Rule 5 shall be void. But, such an order is not necessarily ultra vires or void ah initio. So
the lower Court is correct when it thought that it would not be just to set aside the order of attachment and that the only remedy to the appellant is
to file a suit against the second defendant for recovery of loss, if any, caused to him by purchasing the property.
Under these circumstances, this court, after anxious consideration of the entire evidence, both oral and documentary, available on record,
concurs with the decision of the lower Court and finds no merit in the appeal. Hence the appeal is dismissed. But, in the circumstances, the parties
will bear their respective costs.