Sinnappan alias Hetharmamana Rowther vs Arunachalam Pillai and Others

Abdur Rahim, C.J.—The question referred to the Full Bench is ""whether an attachment operates as a valid prohibition against alienation of

the attached property from the date on which it is ordered or from that on which the necessary proclamation is made and copy of the order

affixed."" This depends upon the proper construction of Section 64 and Order XXI, Rule 54 of the Code of Civil Procedure. Section 64 lays down

that "" 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 monies contrary to such attachment, shall be void as against all claims enforceable under the

attachment.'''' Rule 54 lays down how an attachment is made : It is in these words:

(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.

(2) The order shall be proclaimed at some place on or adjacent to such property by beat of drum or other customary mode, and a copy of the

order shall be affixed on a conspicuous part of the court-house, and also, where the property is land paying revenue to the Government, in the

Office of the Collector of the District in which the land is situate."" It is contended before us by Mr. Jayarama Iyer that the attachment is made when

the order prohibiting the judgment-debtor from transferring the property is passed and that from that date the alienation of the property is

prohibited. His argument is that although the order has to be proclaimed as required by the 2nd paragraph of the rule the attachment must be taken

to have been made when the Court passed the order of prohibition. He is unable to cite any authority in support of his contention, but he says that

the language of Section 4 and Rule 54 supports it. Section 64 does not say ""where an order for attachment has been made"" but "" where an

attachment has been made''. No doubt E. 54 says that an attachment shall be made by an order but that does not necessarily mean that the order

completes the attachment. In fact Mr. Jayarama Iyer seemed in one part of his argument to concede that the attachment is not completed until the

order is proclaimed and a copy of the order affixed in the way described in paragraph 2 of Rule 54. That seems to be obvious. The object of

Section 64 is to prohibit alienation after attachment, and, if the mere passing of an order in Court would have that effect one can easily imagine that

the judgment-debtor would be in a position to make alienations to innocent purchasers to their prejudice. The essence of an order for attachment is

to prohibit the judgment-debtor from transferring the property and until such a prohibition is proclaimed and made known in the way provided by

the rule it cannot be said to have come into operation.

Our attention has been drawn to a somewhat different wording of Rule 43 and Rule 46 of Order XXI. The first rule provides that in case of

moveable property the attachment shall be made by actual seizure, and it does not contain reference to any order. Rule 46 provides that the

attachment shall be made by a written order prohibiting the debtor from paying the debt to his creditor. But so far as Rule 43 is concerned there

can be no doubt that there must be an order preceding the actual seizure; and when the debtor receives notice under Rule 46, that is when the

order is served on the debtor, there can be no question of his paying the debt to his creditor without notice of any prohibitory order. In a recent

Full Bench ruling of this Court, Venkatachalapati Rao v. Kameswaramma ILR (1917) Mad. 151 it was laid down that where subsequent to an

interim order for stay of execution made by an appellate Court without notice to the decree-holder but before its communication to the Court of

first instance, an order of attachment is made by the latter Court, the order of attachment is not void and ineffectual as having been made without

jurisdiction, but is legally valid. The reason given is that the order staying execution is in the nature of a prohibitory order to the lower Court and

until it is communicated the steps taken by the lower Court must be treated as legally valid. It cannot be denied that so far as prohibitory orders,

properly so called, are concerned they do not come into operation until notice of the order is given to the prohibited person. Applying the same

principle to the case now under consideration it would not be right to hold that the mere passing of the order by a Court without anything being

done to effectuate the attachment would operate as an attachment of the property.

The main argument of Mr. Jayarama Iyer is based on the omission from Section 64, CPC of the words "" by actual seizure "" or ""by written order

duly intimated and made known in the manner aforesaid"" after the words "" where an attachment has been made''''. The reason for the omission

seems to be obvious. The mode of attachment is laid down in the Code, that it is to be effected by actual seizure or by written order duly intimated

and made known in the manner referred to, and the legislature apparently thought that it was superfluous to repeat those words. This is what was

pointed out by Woodroffe and Mookerjee, JJ., in Simrik Lal Bhakat v. Radharaman 39 IND.CAS. 857.

It is also argued by Mr. Jayarama Iyer that although an attachment is not completed until the proclamation is made, still once the proclamation is

made the attachment takes effect from the date of the order of the Court. It is difficult to appreciate the force of this argument. The attachment can

be said to be made only on the date on which it is completed and becomes operative.

There is only one ruling of this Court in point and that is the ruling in Ramanayakudu v. Boya Pedda Basappa ILR (1918) Mad. 565 to which

Phillips and Krishnan, JJ., were parties. That is directly in support of the view just indicated. There is another decision by Phillips and

Kumaraswami Sastri, JJ. in Venatasubbiah v. Venkata Seshiah ILR (1917)M. 1. That was a case of attachment before judgment and the question

for consideration was whether, where an order for attachment was made before judgment and the attachment was not actually made until after the

decree, that was a valid attachment. They hold that it was a valid attachment and in so holding certain general expressions were used in the course

of the judgment which have been seized upon by Mr. Jayarama Iyer in support of his argument. The general observations ought to be read in

connection with the point which the learned judges had before them and if so read they cannot be said in any way to countenance the construction

contended for on behalf of the appellant.

There is only one other case that has been brought to our notice and that is a Calcutta decision in Kanai Lal v. Ahed Bux 39 Ind.Cas. 562. That

also is in support of the view which has been indicated. The answer will therefore be that an attachment operates as a valid prohibition against

alienation of the attached property only from the date on which the necessary proclamation is made--copy of the order affixed as contemplated in

Order XXI, Rule 54.

Oldfield, J.

I agree.

Seshagiri Aiyar, J.

I entirely agree. I think the principle enunciated in Venkatachalapati Rao v. Kameswaramma ILR (1917) Mad 151 is applicable to this case.

As regards the contention that the omission of the words commented upon by the learned Chief Justice makes for the position that the order

was intended to be efficacious from the moment of its promulgation and not from its publication, I agree with the view taken by the Calcutta High

Court that the legislature must have thought that these words were mere surplusage. If the legislature had intended to introduce such a fundamental

change as is suggested by Mr. Jayarama Iyer, it could have very easily stated in Section 64 ""where an order for an attachment has been made, any

private transfer, etc."" That is not what the legislature has said and it would not be in consonance with any canon of construction to impute to the

legislature such a violent change in the law because of the omission of certain unnecessary words. In my view the decision in Ramanayakudu v.

Boya Pedda Basappa ILR (1918) Mad. 565 is correct. As regards Venkatasubbiah v. Venkata Seshaiya ILR (1918) Mad 42 as I understand the

learned Judges, the question, before them was whether an order for attachment which was made before the decree was passed had spent itself out

as it had not been effectuated by doing the acts enjoined before the passing of the decree. The learned judges in construing Order XXXVIII, Rule

11 were of opinion that although nothing might have been done between the passing of the order and the passing of the decree the order still

remained in force and could be effectuated by publication and proclamation after the date of the decree. That is not the point we are concerned

with. Apart from that point, the learned Judges have expressed themselves in no uncertain terms on the question we have to decide : they say that

until the order has been proclaimed there can be no attachment, and to that extent are therefore in agreement with the view taken in

Ramanayakudu v. Boya Pedda Basappa ILR (1918) Mad. 565.

The second argument which Mr. Jayarama Iyer advanced before us is, that although the order might have been proclaimed only at a later date,

it dates back to the date of its being made. The answer to that is this: Section 64 attempts at preventing a party from exercising his undoubted right

of alienation. Therefore, unless we find in Section 64 any provision which says that the order of publication was to date back to the date of its

promulgation, the courts are not justified in saying that this should be read into he language of the section. The right was intended to be affected

only from the date which is actually mentioned in the section and not from an anterior, date. This is the view taken by the Calcutta High Court in

Kanai Lal v. Ahed Bux 89 Ind.Cas. 562 and in my opinion that view is right.

For both these reasons the answer must be the one suggested by the learned Chief Justice.