MARIAMMA MATHEW Vs. ITTOOP POULO

JUDGEMENT

(1.) THESE two revision petitions arise from an order of the District Munsiff, Parur, disposing of three separate claims preferred regarding certain properties attached before judgement, pursuant to an order of the District Munsiff, Perumpavoor. In O. S. 744 of 1112 on the file of the perumpavoor District Munsiff's Court the plaintiff sought for and obtained an order for attachment before judgment of 12 items of immovable properties. One alone among the 12 items was situated within the jurisdiction of that Court. The remaining items lay within the jurisdiction of the Parur Munsiff's Court. The attachment of the property within the jurisdiction of the Perumpavoor munsiff's Court was effected on 24. 12. 1112 and with respect to the properties within the jurisdiction of the Parur Court the Perumpavoor Munsiff sent his order of attachment and the connected papers direct to the Parur Court instead of sending the same through the District Court at Parur as required by S. 101 of the Travancore Civil Procedure Code (a provision corresponding to S. 136 of the Civil Procedure Code Act V, 1908 ). The District Munsiff, Parur, got the 11 items situated within his jurisdiction attached by an Amin from his Court and his report shows that the attachment was effected on 7. 1. 1113. In due course the plaintiff's suit resulted in a decree in his favour and as he proceeded to execute it by bringing the properties attached before judgment to sale the three claims giving rise to the order under revision were preferred by three several alienees from the judgment-debtor. THESE claims raised two preliminary questions of which one was whether the attachment effected by the Parur munsiff's Court was valid in as much as the order for attachment was sent direct to that Court instead of through the District Court at Parur as enjoined by S. 101 of the Travancore Civil Procedure Code. This preliminary point was found against by the learned Munsiff. On the authority of a Division Bench ruling of the Travancore High Court reported as Jacob v. Chachi -16 Travancore law Times 368 - the Munsiff held that the failure to transmit the attachment order through the District Court at Parur was only an irregularity and not a matter affecting the jurisdiction of the Parur Munsiff's Court to effect the attachment.

(2.) THE second preliminary point arose from the fact that on four alone out of the eleven items of properties situated within the jurisdiction of the Parur Court there was affixture of the copy of the order of attachment. THE eleven items lay scattered in four muries and one item in each muri was selected for publication of the order by affixture. It was contended that, assuming the parur Munsiff's Court could have validly attached before judgment these properties pursuant to an order of the Perumpavoor Munsiff's Court sent direct to that Court, no effective or valid attachment there would be unless there was affixture of the copy of the order on every one of the properties and that as there was admittedly no affixture on items 2, 4, 5, 7, 8, 9, and 12 these items were not in any event subjects of the attachment said to have been effected. This point found favour with the learned Munsiff and the decree-holder has preferred C. R. P. No. 1097 challenging the correctness of that view.

(3.) ON behalf of the petitioner in C. R. P. No. 536 it was strenuously contended before us that in the absence of an order from the district Court authorising the District Munsiff of Parur to carry out the attachment directed by the Perumpavoor Court, the Parur Munsiff's Court had no jurisdiction to effect the attachment and that the attachment effected in this case over the properties situated within the jurisdiction of the Parur Court was hence invalid and of no legal effect. The point is not free from difficulty, for it involves the determination of the question whether the transmission of the order of attachment in disregard of the provision in S. 101, Travancore Civil Procedure Code was only an irregularity, or a matter affecting the jurisdiction of the Munsiff's Court at Parur. Where there is no lack of inherent jurisdiction over the subject matter but there was only irregular assumption of jurisdiction there is a plethora of decisions including those of the Privy Council that the proceeding will not be invalid but only irregular and that the defect is one which might be waived. Before we proceed to examine the proposition it is convenient to quote here the provisions of s. 101 of the Travancore Civil Procedure Code. "101. Where an application is made that any person shall be arrested or that any property shall be attached under any provision of this Code not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the court to which the application is made, the Court may, in its discretion, issue a warrant of arrest or make an order of attachment, and send to the District court within the local limits of whose jurisdiction such person or property resides or is situate a copy of the warrant or order, together with the probable amount of the costs of the arrest of attachment. [3] The District Court, shall, on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by a Court subordinate to itself, and shall inform the Court, which issued or made such warrant or order, of the arrest or attachment. [3] The Court making an arrest under this Section shall send the person arrested to the Court by which the warrant of arrest was issued, unless he shows cause to the satisfaction of the former Court why he should not be sent to the latter Court, or unless he furnishes sufficient security for his appearance before the latter Court or for satisfying any decree that may be passed against him by that Court, in either of which cases the Court making the arrest shall release him".