1962 (12) TMI 90 - HC - Indian Laws

Summary

Issues Involved:
1. Validity of attachment by Civil Judge, Lucknow.
2. Validity of sale without valid attachment under Section 51(b) of the Code.
3. Necessity of compliance with Clause (b) of the first proviso to Rule 90 of Order 21 within the prescribed period of limitation.

Detailed Analysis:

1. Validity of Attachment by Civil Judge, Lucknow:
The appellants contended that the attachment of the property by the Civil Judge, Lucknow, based on a precept received directly from the Civil Judge, Kanpur, was invalid. The court examined Section 136 of the Code of Civil Procedure, which mandates that an order of attachment should be sent to the District Court within the local limits of whose jurisdiction the property is situated. The District Court can then have the attachment made by its own officers or by a subordinate court. The attachment by the Civil Judge, Lucknow, without the order being routed through the District Court, was deemed invalid. The court held that "the Civil Judge at Lucknow had no jurisdiction to attach the property and the attachment was consequently invalid."

2. Validity of Sale Without Valid Attachment:
Despite the invalid attachment, the court considered whether the sale of the property could still be valid under Section 51(b) of the Code, which allows for execution "by attachment and sale or by sale without attachment of any property." The court referenced multiple decisions, including Mahadeo Dubey v. Bhola Nath and Sheodhyan v. Bholanath, concluding that the absence of attachment prior to the sale amounts to a material irregularity but does not render the sale void unless substantial injury is caused. The court stated, "A court has, thus, power to first attach the property and then sell it, or to direct sale of the property without any attachment."

3. Compliance with Clause (b) of the First Proviso to Rule 90 of Order 21:
The appellants did not deposit any amount or furnish security as required by Clause (b) of the first proviso to Rule 90 within the prescribed period of limitation. The court considered whether this non-compliance barred the objection. It was held that the term "entertain" in the proviso means "proceed to consider on merits" rather than "receive" or "accept." Therefore, the court should give the applicant an opportunity to comply with Clause (b) before dismissing the application. The court noted, "The true intention of the proviso is to allow the judgment debtor to prosecute his application for the setting aside of the sale, if he complies with the conditions contained in the proviso to Rule 90 before the application is finally heard and disposed of by the Court."

Conclusion:
1. First Execution Appeal No. 3 of 1960: Dismissed. The court held that the appellants' objection under Section 47 was invalid as the sale had already taken place, and the appellants failed to stay the sale during the pendency of their objection. The court stated, "The appellants cannot, therefore, make any grievance of the same and their first appeal 3 of 1960, is liable to be dismissed on that account."

2. First Appeal From Order No. 50 of 1960: Allowed. The court found that the objection under Rule 90 should not have been dismissed for non-compliance with Clause (b) within the prescribed period of limitation. The objection was remanded to the execution court for hearing and disposal in accordance with law. The court concluded, "The objection filed by the appellants under Order XXI Rule 90 of the Code of Civil Procedure is remanded to the execution Court for hearing and disposal in accordance with law in the light of the observations made in the body of this judgment."

Separate Judgment:
M.C. Desai, C.J., concurred with the orders proposed by S.D. Singh, J., and elaborated on the interpretation of Section 136 and the proviso to Rule 90. He emphasized that the attachment by the Civil Judge, Lucknow, was without jurisdiction and null and void, but the sale without attachment was not void. He also agreed that the application under Rule 90 should not be dismissed for non-compliance with Clause (b) within the period of limitation.