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TMI Blog1962 (12) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... the order of attachment shall be sent to the District Court within the local limits of whose jurisdiction the property is situate and under Sub-section (2) of the same section it is open to the District Court to have the attachment made by its own officers or by a Court subordinate to itself. What the Civil Judge at Kanpur. however, did was that the order of attachment was sent direct to Civil Judge, Lucknow. who even ordered the attachment of the property without caring to see whether he could execute the order of attachment of the property under a precept received by him direct. 3. After the suit was decreed, the decree was transferred to the Lucknow Court for execution and as according to the decree-holders, the attachment had already been made before judgment, they applied for execution of the decree by sale of the property on 25th August, 1958. No objections were filed by the appellants at the stage of the settlement of terms of sale or drawing up of the sale proclamation. Dates were fixed for sale of property, but for one or two dates the appellants obtained adjournment of the same to enable them to negotiate a private sale or to arrange for money by mortgage of the property ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t turn up and the property was consequently knocked down at an inadequate price resulting in substantial loss to the judgment-debtors. (3) That the publication of the sale was fraudulent inasmuch as the terms of the sale proclamation were settled behind the back of the judgment-debtors without service of notice on them. (4) That the property was grossly undervalued in the sale proclamation designedly and deliberately with a view to prejudice the judgment-debtors the valuation given being only ₹ 50,000/- as against 1,25,000/-, which was the proper valuation of the property. (5) That the monthly rent of the property which was ₹ 487/8/- was not shown in the sale proclamation and this information was fraudulently suppressed. (6) That the sale proceedings were vitiated on account of the attention of the Court not having been invited to the illegality or invalidity of the attachment, (7) That the holding of the sale during the pendency of the objections as to the jurisdiction of the Court to sell the property dissuaded the purchasers from bidding, resulting in substantial injury to the judgment-debtors. (8) That there was irregularity in the assumed service of not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lause (b) of the first proviso to Rule 90 within the period of limitation prescribed for an objection under Rule 90 and that since exemption from compliance was applied for and obtained long after the expiry of the aforesaid period of limitation, the objection filed by. them would be barred by time and consequently liable to be dismissed. 7. Taking the two appeals together, the questions, which arise for decision and which were canvassed before us, are: (1) Whether attachment of the property by Civil Judge, Lucknow, on the authority of a precept received by him direct from Kanpur was valid and effective in law? (2) Whether sale of the property without any valid attachment was valid and effective under S. 51 (b) of the Code? (3) Whether it was necessary for the appellants to comply with the provisions of Clause (b) of the first proviso to Rule 90 of Order 21 of the Code within the period of limitation prescribed for an objection under the aforesaid rule. 8. Provision for arrest or attachment of property before judgment, outside the jurisdiction of the Court ordering the same, is made in Section 136 of the Code. Sub-sections (1) and (2) of that section read: "136. (1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the authority of an order of attachment received from another Court is a mere matter of procedure and does not involve a question of exercise of jurisdiction and these authorities may therefore, be examined. 11. Jang Bahadur v. Bank of Upper India, Ltd., Lucknow AIR 1928 P. C. 162 is a case which involves the interpretation of Section 50 of the Code. In that case a decree was transferred by one Court to another, but the judgment-debtor was found to have died before the certificate was issued. Section 50 of the Code provides that where a judgment debtor dies before the decree is fully satisfied, the decree holder may apply to the Court which passed it to execute the same against the legal representatives of the deceased. The decree-holder in that case, however moved the application before the transferee Court, which Court allowed the same and execution was allowed to proceed against the legal representatives. At a later stage the legal representatives objected to the execution of the decree against them on that account and it was held that Section 50 only lays down a procedure and that if the procedure was not followed, the defect might be waived and that the legal representatives ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts jurisdiction in a Court to transfer a decree for execution to any other Court and it is in the light of the provisions of this section that Rules 5 and 8 of Order 21 of the Code were held to lay down mere procedure for such transfer. 14. In Banaras Bank Ltd. v. Jyoti Bhushan AIR1951All362 the question under consideration was whether the Registrar of the High Court could transfer a decree for execution to another Court. The decision in the case turned upon the interpretation of Clause (e) of Rule 9 (xi) of Chapter I of the then Rules of this Court (1931) under which the Registrar had the power to send the decrees and other orders to other Courts for execution. It was contended that this provision was ultra vires and that the Court had no jurisdiction to delegate its judicial function to a ministerial official, but it was held that the rule was framed under Section 122 of the Code and that the transfer of decrees for execution to other Courts was merely an act of ministerial nature. The question, therefore, which received consideration in that case, was altogether different. The Registrar exercised his jurisdiction for transferring the decree under the provisions of the Rules of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e judgment is seized of the matter, but the property does not lie within its jurisdiction. If the order of attachment is sent to a Court other than, the District Court, the property required to be attached may He within the jurisdiction of that Court, but that Court cannot be seized of the matter unless the proceedings for attachment are properly before it. Sub-sections (1) and (2) of Section 136, therefore, prescribe not only the manner in which the attachment shall be made but also jurisdiction for making the attachment. On receipt of the order of attachment, the District Court is seized of the matter and the property is also within its jurisdiction and attachment can, therefore, be made by it. Sub-section (2), however, prescribes that the District Court may cause the attachment to be made by its own officers or by a Court subordinate to itself. If the District Court exercises the option to get the attachment made by a Court subordinate to itself, it will be only then that that Court will be seized of the matter and since the property also lies within its jurisdiction, it will be able to get it attached. This was the view taken by Dar, J. in AIR1941All212 and with respect, we ag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cates that a question of jurisdiction is involved in it. With respect, therefore, we are unable to follow the view taken by the Full Bench in AIR 1952 Ker 159 (supra) and hold that the Civil Judge at Lucknow had no jurisdiction to attach the property and the attachment was consequently invalid. The effect would be as if attachment had not been made at all. 19. The attachment of the property by the Civil Judge being invalid, the next question for consideration is whether under the circumstances the sale thereof could be ordered by that Court. This involves the interpretation of Section 51 of the Code. Under this section the Court may, on the application of the decree-holder, order execution of the decree, among the other modes, "by attachment and sale or by sale without attachment'' of any property. The first impression which this provision gives is that the Court may sell the property not only after attachment, but even without attachment. While the contention of the appellants was that sale of the property without attachment is void, it was contended on behalf of the respondents that the Court had jurisdiction to sell the property even without attachment and that no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ovided". Section 266 declared what property of a judgment-debtor was liable to attachment and sale in execution of a decree. The power of sale, it was pointed out, was conferred by Section 284 of the then Code, which corresponds to Order XXI, Rule 64 of the present one, under which "Any Court ..... may order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold". While Rule 64 of Order XXI of the present Code does provide that any property, which may have been attached by the Court earlier or any part thereof may be sold, now that there is specific provision to that effect, the power to sell the property cannot be said to be derived by the Courts under this rule but under Section 51(b), which clearly makes provision for the Court ordering execution of the decree by attachment and sale, "by sale without attachment" of any property. Although Rule 64 of Order XXI does say that the Court may order sale of property which may have been attached earlier, or any part thereof as may seem necessary, to satisfy the decree, it does not curtail the jurisdiction of the Court under Section 5 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... IR1927Cal847 that absence of attachment does not vitiate the sale. 27. The Madras High Court pointed out in K. Swaminatha Iyer v. Krishnaswami Iyer that although attachment of property is a necessary preliminary to a judicial sale of immovable property, a sale without attachment is not a nullity, and that omission to attach the property is only a material irregularity which would not render the same liable to be set aside unless substantial injury is proved; and the same view was taken in two earlier decisions, Vengu Chetti v. Valjee Kanjee and Co. AIR 1936 Mad 99 and Shivakolundu Pillai v. Ganapathi Iyer AIR 1918 Mad 1262. 28. This question came up for consideration before a Full Bench of the Travancore-Cochin High Court in Eravi Pillai v. Maluk Mohammad Shaul AIR 1953 Ker 494 but in proceedings under the Travancore Revenue Recovery Act, I of 1068, and it was held that Section 24 of the Act relating to the attachment of property was mandatory and that sale of property without attachment was null and void, but the decision in the case turned upon the wordings of Section 24 which provided for attachment of property and then its sale. The provisions of Section 51(b) of the Code of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be recorded, dispense with this requirement, 32. It is not in dispute that no deposit was made by the objectors, nor any security furnished by them. An application was moved for exemption being granted for the operation of Clause (b) of the proviso to Rule 90 aforesaid on 13th February, 1960, and was allowed on 29th February, 1960. The sale, it may be recalled, took place on 26th October, 1959, and the objection under Rule 90 was filed on 24th November, 1959. The question is whether the objector should have made the deposit or furnished security under Clause (b) of the proviso or applied for exemption thereunder within the period of limitation prescribed for filing an objection under Rule 90, and if, in the absence of compliance with the provisions of Clause (b) within the aforesaid period of limitation the objection could be 'entertained' or if it was liable to be thrown out. Reliance was placed by the learned Counsel for the respondents on AIR1962All42 in which V. Bhargava, J. has held that under such circumstances the proviso bars the entertainment of an objection altogether and that consequently if the requirements of the proviso are not complied with within the time ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ling of the application or the admission of the application by the Court and that 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. 36. The meaning of the word "entertain" was also understood in the same sense in another recent decision, Dhoom Chand Jain v. Chaman Lal MANU/UP/0132/1962 : AIR1962All543 to which one of us was a party, and it was pointed out: "The dictionary meaning of the word 'entertain' is: to deal with; to admit to consideration. In its application to Clause (a) the word bears the meaning, of admitting to consideration. That clause enjoins the Court from considering the application on any ground which could have been taken on or before the drawing up of the sale proclamation. In its application to Clause (b) the word should bear the same sense. Accordingly while the court cannot refuse to take an application which is not backed by deposit or security, it cannot judicially consider it. It is expected that the Court would o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o simultaneously with the filing of an objection under Order 21, Rule 90 is thus impossible and could not be and was not intended. The Allahabad amendment does not even use the words "with his application" which are to be found in the Rule as added by the Patna High Court, and the grounds for accepting this interpretation of the Allahabad Rule are, therefore stronger. 40. In this particular case, the Civil Judge granted the 'objectors' exemption from the operation of the proviso before the objection came up for final hearing. There was, therefore, no difficulty in the Civil Judge 'entertaining' the objection, in the sense of 'proceeding to bear it on merits'. 41. The next question to be considered in this case is whether the Civil Judge should have heard the earlier objection filed by the appellants under Section 47 of the Code of Civil Procedure on merits, even though the property may have already been put to sale. On this point reference may be made to Kishan Lal v. Har Prasad AIR1963All319 which was decided by a Division Bench to which also one of us was a party. It was held that if a judgment debtor seeks to set aside a sale on the ground of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en by the applicant on or before the date on which the sale proclamation was drawn up. Normally it should have been possible for the appellants to take the objection relating to non-attachment of the property before the date on which the sale proclamation was drawn up, but it may be that according to them they were not served or had no notice of the execution proceedings and that would, therefore, be a question to be considered by the execution Court. Some of the objections taken by the appellants under Rule 90 relate only to the holding of the sale and could not have, therefore, been taken before the sale proclamation was drawn up, while others are directly connected with the non-attachment of the property prior to sale arid these objections would, therefore, go along with the main contention of the appellants and will be considered by the execution Court along with the same. 43. In view of these findings, therefore, appeal No. 50 of 1960 succeeds and will have to be allowed. 44. First Execution Decree Appeal No. 3 of 1960, is dismissed with costs to the respondents. First Appeal From Order No. 50 of 1960, is allowed. The judgment 'and the decree of the trial Court, dated 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o attach the property and the attachment was null and void. But there is ample authority to show that a sale of property without attachment is not void; therefore the want of attachment did not invalidate the sale. This is one ground on which the appeal should fail. The other ground is that the sale had taken; place before the appellants' objection under Section 47 against the property being put to sale without a valid attachment could be disposed of. It was their own fault if they did not apply for stay of sale during the pendency of their objection against the attachment. Once the sale took place the Civil Judge, Lucknow, could not go into the question of the validity of the attachment. He, therefore, rightly dismissed the objection of the appellants and I agree with my learned brother that this appeal should be dismissed with costs. 47. Coming to the connected appeal I agree with my learned brother that the appellants' objection under Order 21 Rule 90 was not barred by proviso (b) added to the Rule by this Court and might have been barred by the proviso (a). I agree that the word "entertain" in the proviso means not "receive" or "accept" b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt or security and the time within which it must be deposited or furnished and that only after the period allowed has expired that it can dismiss the application on the ground that it could not proceed to consider it on merits because the amount or security fixed by it had not been deposited or furnished. It cannot dismiss an application under the Rule as soon as it is presented to it on the ground that it was not accompanied by a deposit or security. It would be consistent with this view that the only limitation, upon an applicant's right to deposit the amount or furnish the security fixed by the Court is the time allowed to him by the Court for the purpose and not the period of limitation prescribed for making an application under the rule. He is entitled to the full length of the period of limitation allowed for making an application under the rule and his liability to deposit an amount or furnish a security arises only under the Court's order fixing the amount or security and the time allowed to him by the Court is irrespective of the period of limitation prescribed for making the application. If the law is not that he must deposit the amount or furnish the security whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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