Vanthali Cloth Association vs Mathuradas Dayalal

Chhatpar, J.—This revision application arises out of the following facts: The opponent Mathuradas Dayalal filed a suit against Khoja

Nurmamad Vashram of Vanthali for recovery of Rs. 728-2-0. Along with the plaint he filed an application for attachment before judgment or

injunction that the Vanthali Cloth Association be restrained from parting with a sum of Rs. 1100/ - which was alleged to belong to the Defendant

Khoja Nurmamad. It does not appear clearly on the record before me whether this application was under Order 38 or Order 39, Code of Civil

Procedure.

Thereafter the suit was decreed, and as the decretal amount was not paid by the judgment-debtor, the judgment-creditor filed an execution

application in which he claimed that the Association should be ordered to deposit the amount in Court. The Association failed to deposit the

amount, as they stated that the amount was paid to the Custodian, Evacuee Property on the allegation that a demand was made by the Custodian''s

office as Khoja Nurmamad had gone away to Pakistan. It is not necessary for me to decide this question whether in fact Khoja Nurmamad was

declared an evacuee; but it does appear that the amount was paid by the Association to the Custodian. The Association having failed to pay the

amount, the judgment-creditor moved the Court for taking further proceedings for breach of the order of the Court to deposit the amount in Court,

and the Court passed an order, the penultimate para of which is to the effect that the Court did not consider this as a fit case to order detention in

jail of the President of the Association for failure to obey the order of the Court, but ordered that the property of the Association should be

attached. This order ends by mentioning in brackets ""Order 39, Rule 2(3)."" Against this order an appeal was preferred by the Association to the

District Court under Order 43, Rule 1(r), Code of Civil Procedure, which gives the right of appeal against all orders under Order 39, Rules 1, 2

and 10. The learned District Judge while hearing the appeal construed the order of the trial Court as an order of breach of an order of attachment

before judgment and held that an appeal did not lie. The learned District Judge observed:

Evidently the Vanthali Court had passed an order under Order 38, Rule 5 for attachment before judgment of the property of the Defendant Khoja

Noormahmad which was in the hands of the Appellant a third party. After the decree was passed the application for the execution of the decree

had to be under Order 21 Rule 46 and the objections to the execution by the Appellant (i.e. Association) a third party had to be filed under Order

21 Rule 58 and the Court could pass an order either under Order 21 Rule 60 or Order 21 Rule 61.

The learned Judge, however, has failed to consider that whatever correct order the trial Court should have passed, the order actually passed

purported to be under Order 39, Rule 2(3). There is not the slightest doubt as to this, as the learned trial Court Judge has specifically mentioned

this in so many words. Then the question of law arises whether an appeal lies from an order of the Court which purports to pass an appealable

order, though wrongly. The point has been decided by authorities. In the case of -- Abdul Rahiman Saheb v. Ganapathi Bhatta 23 Mad 517, the

Madras High Court considered the case of a Judge having passed order, in which he purported to issue an injunction u/s 492 of the CPC for the

attachment of the estate of the minors and to appoint a receiver to manage the estate. On an appeal being preferred against the said orders it was

contended that the Judge must be taken to have acted under the Guardians and Wards Act, 1890, and that inasmuch as no appeal was provided

by that Act, in respect of such orders, no appeal lay. It was held:

though both orders were passed without jurisdiction, the Judge purporting to have acted u/s 492, CPC as regards the issue of an injunction, and

u/s 503 as regards the appointment of a receiver, inasmuch as orders under either of these sections were appealable, the fact that the Judge had no

power in this case to pass orders under them did not bar the High Court from treating the orders as having been passed thereunder for the purpose

of entertaining an appeal against the orders, since there was no provision of law under which the Judge could pass orders attaching property or

appointing a receiver without such orders being subject to appeal.

This ruling of the Madras High Court has been followed by the same Court in the case of -- Latchmanan Chetty v. Ramanathan Chetty 28 Mad

127., where an order which purported to be for the execution of a decree was held appealable. It was observed:

Even if there was no decree to be executed, and the Subordinate Judge erroneously supposed the matter to be one in execution, and held the

application to be barred, such usurpation of jurisdiction could not make the order passed in consequence thereof less appealable than would have

been the case had the order been passed in execution proceedings under a decree duly passed.

Both these cases were cited with approval in a Full Bench case of the same High Court in the case of -- P.M.A.R.M. Muthiah Chettiar Vs. Lodd

Govinda Doss Krishna Doss Varu and Another, . This principle has also been followed by the Madras High Court in the later case of -- B.

Hanumantha Raw and Others Vs. A. Krishnamma and Others, .

Following these rulings, 1 hold that the learned District Judge had wrongly failed to exercise the jurisdiction vested in him in refusing to entertain

the appeal. Consequently, I set; aside the order of the learned District Judge, and remand the appeal to him to be disposed of in accordance with

law. In view of the peculiar circumstances of the case, I make no order as to costs of this revision application.