RAJENDER SINGH Vs. RAMDHAR SINGH

JUDGEMENT

(1.) This appeal is directed against the order passed in Civil Revision No. 1208/87 by the High Court of Judicature at Patna. The plaintiff-appellant herein filed Money Suit No. 13 of 1974 before the Subordinate Judge's Court, Biharsharif. On 26-3-1974, the plaintiff obtained an order of attachment before judgment in respect of certain properties of defendant situated within the local jurisdiction of Subordinate Judge, Jehanabad. The attachment order was sent directly to Sub-ordinate Judge, Jehanabad on 27-3-1974 and it was served on the defendant in the suit on 31-3-1974. The defendant remained ex parte and the suit was decreed on 11-10-1974. The plaintiff-decree holder sent the decree for execution to the Court of Subordinate Judge, Jehanabad. On 25-8-1976 a fresh order of attachment of the properties was made by the executing Court and the properties were sold through Court auction on 19-11-1977. The decree holder himself purchased the attached property for a sum of Rs. 5996.38. The properties were having an extent of about 5 acres. The respondents herein filed a Miscellaneous Case of 19-11-1977 contending that they had purchased the disputed properties from the judgment debtor on 27-4-1974. According to the respondents, they had purchased these disputed properties under three registered sale deeds dated 27-4-1974 and 7-9-1974 for a total sum of Rs. 47,000/-. They had also alleged that prior to the sale deeds, there were two deeds of Baibeyana (Agreement to sell) dated 9-2-1974 and 16-2-1974 respectively. The respondents contended that there was no proper attachment of these properties and the auction of the properties was held illegally and they prayed that the lands be released from attachment. The Miscellaneous case No. 28 of 1977 filed by them was rejected by the Execution Court and aggrieved by the same, they filed Revision Petition No. 1208 of 1987 before the High Court.

(2.) The respondents contended that the attachment before judgment obtained by the decree holder-appellant was not in accordance with Section 136 of Civil Procedure Code. They also contended that the decree holder had purchased the property without obtaining previous sanction of the Court and therefore, the sale in his favour was illegal. They had further contended that the two agreements for sale were prior to the attachment obtained by the plaintiff and, therefore, the subsequent attachment will not prevail over the sale deeds executed pursuant to the agreements for sale. This plea was not considered on merits by the High Court. The High Court accepted the plea of the respondents regarding non-compliance of Section 136 of the Civil Procedure Code. The High Court held that the attachment order was not sent through the District Judge, Gaya, within whose territorial jurisdiction, the Subordinate Judge's Court, Jehanabad, and the attached properties were situate. The High Court accepted this plea and held that as the attachment before judgment was not sent through the District Judge, Gaya, within whose territorial jurisdiction the attached property was situate, the same was ineffective and that warrant of attachment being ineffective, subsequent alienations by the judgment debtor were valid transactions and the purchasers obtained valid title. In that view of the matter, the auction sale was set aside and the revision application filed by the respondents was allowed. Aggrieved by the same, the present appeal is filed.

(3.) The question that arises for consideration is whether the Court, which passes an order of attachment in respect of properties situated within the jurisdiction of another Court, can directly send the order of attachment to that Court or it should always endorse the order of attachment to the District Court within the local limits of whose jurisdiction the attached property is situate. Attachment before judgment is effected under Order XXXVIII, Rule 5 of the Code of Civil Procedure. Rule 7 of Order XXXVIII provides the mode of making attachment. It says as under: