MOOKAN OUSEPH THOMAKUTTY Vs. PURAMUNDEKAT PADINJARE MADATHIL NANU

JUDGEMENT

(1.) The short question in this case is whether an attachment effected prior to judgment is valid and subsisting.

(2.) In a suit pending before the court of the Munsiff of Cochin an attachment before judgment was sought. The properties sought to be attached lay within the jurisdiction of the court of the Munsiff of Ponani and therefore the warrant of, attachment was sent to that court through the District Court at Ernakulam. The warrant was not sent through the District Court of Kozhikode as contemplated by S.136 of the Code of Civil Procedure. The attachment was effected without any objection and it was also confirmed by the Cochin court without any objection. The suit was finally decreed and when proceedings in execution in pursuance of the attachment were started, objection was taken that the attachment was invalid, because the warrant of attachment was not sent by the Cochin court through the District Court of Kozhikode. This objection was overruled by the primary court, but was upheld by the learned Subordinate Judge. The correctness of that order is being canvassed in the Second Appeal.

(3.) S.136 of the Code of Civil Procedure prescribes only a procedure and does not confer jurisdiction on the court, which effects the attachment. The non compliance of that procedure being only a procedural defect, it may be waived if no objection is taken and it does not invalidate the attachment itself. This position appears to be almost clear under S.136. Besides, Mr. T.S. Venkiteswara Iyer invites my attention to a Full Bench decision of the Travancore-Cochin High Court in Mariamma Mathew v. Ittoop Poulo ( 1952 KLT 116 ), wherein several decisions of various High Courts on the question have been considered and a similar view taken. I am in entire agreement with that decision and I do not think there is any need for reviewing the decisions considered in that case. 1 would only refer to one ruling of the Privy Council Pigani v. Attorney General of Gibralter (1874) L.R. 5 P.C. 516). The relevant observation in that judgment is: