BABURAM BALMUKUND Vs. JAINARAYAN SUSHILKUMAR

JUDGEMENT

(1.) Before coming to the merits of this case one contention of law raised by Mr. Oza for the appellant based upon the provisions of sec. 136 of the Civil Procedure Code should be dealt with. As stated earlier the warrant of attachment at Exh. 9 was sent directly by the trial Court to the Small Causes Court at Delhi; and the attachment was effected. It was not sent through the District Court at Delhi as contemplated by sec. 136 of the Code. This warrant Exh. 9 was made over by the Small Causes Court to one bailiff on April 21 1975 directing return thereof to be made to the Nazir on or before April 25 1975 Though this contention was not taken in the trial Court the contention involves a question of law to be decided on the aforesaid facts which not in dispute; and therefore I have allowed Mr. Oza to raise this contention. Of course Mr. Shelat for the other side stated that in the absence of a plea based on sec. 136 of the Code it could not have been ascertained whether after receipt of the warrant the Small Causes Court straightway proceeded to execute it or obtained directions from the District Court in Delhi in view of the provisions of sec. 136 of the Code. It is not possible to agree with this submission of Mr. Shelat. The warrant shows that it was signed on April 19 1975 The order of the small Causes Court making over the warrant to one bailiff and ordering its execution on the spot on 21-4-1975 would show that this order was obtained soon after the warrant reached the Small Causes Court at Delhi. We have therefore to deal with the question of law raised by Mr. Oza. Sec. 136 or the Code reads as under:

(2.) Sub-sec. (1) of sec. 136 provides for making of an order of attachment and sending to the District Court within the local limits of whose jurisdiction the property to be attached is situate a copy of the warrant or order together with the probable amount of the costs of the arrest or attachment. What has the District Court to do on receipt of the order of attachment is laid down by sub-sec. (2). In my opinion this sub-sec. will be material for resolving the question posed. There is no alternative left to the District Court which receives the order of attach- ment from any Court under sec. 136 of the Code but to cause the attachment to be made by its own officers or by a Court subordinate to itself. The District Court or the Court subordinate thereto to whom the order of attachment is sent cannot question the order for attachment passed by the other Court. The section gives a mandate to the District Court to cause the attachment to be made by its own officers or by a Court subordinate to itself. Therefore the matter pertains to the procedure provided for execution of the order of attachment. The section is not enacted with a view to confer power of execution of the order of attachment on the District Court alone. The object of the provision is not to provide for conferment of exclusive power of causing the attachment to be made on the District Court. The object is to provide for an agency through which the order of attachment made by the outside Court has to be carried out. There is nothing in sec. 136. which would justify the view that it provides for competency to attach property by the Court to whom the order of attachment is sent under this section. The section nowhere says that on receipt of the order of attachment it shall be competent to the District Court to cause the attachment to be made. On the contrary the section assumes competence of the District Court to cause the attachment to be made and directs the District Court to execute the order of attachment. In my opinion therefore sec. 136 is not an empowering section in the sense that power to execute an order of attachment passed by an outside Court is conferred upon the District Court. The section relates to the procedure only laying down what the District Court should do on receipt of the order of attachment. In fact the manner in which a valid order of attachment made by a Court with jurisdiction can be executed would pertain to the realm of procedure and not to the jurisdiction to execute the order of attachment. Sec. 136 occurs in Part XI which contains miscellaneous provisions. The Division Bench of Allahabad High Court in RAHIM BUX & SONS V. FIRM SAMIULLAH & SONS (A. I. R. 1963 ALLAHABAD 320 proceeds upon the jurisdictional aspect of sec. 136. In paragraph 17 the following observations have been made:

(3.) In S. A. PATIL V. P. K RAJPUT A. I. R. 1973 MYSORE 82 the learned Single Judge who decided that case has relied upon the same principle stated by the Allahabad High Court viz. that the section confers jurisdiction on the Court which has not made an order of attachment to give effect to the order of attachment made by another Court. In the Patna case (BANSROPAN SINGH V. EMPEROR A. I. R. 1937 PATNA 603 the view taken was that the provisions of sec. 136 of the Code must be strictly observed and the warrant must be endorsed to the District Court of the district in which the warrant is to be executed. In that case the warrant sent to the Munsif direct was held to be defective. Madhya Bharat case (RAMESHWARDAYAL RAMSWAROOP V. BHEEMSEN DULICHAND A. I. R. 1951 MADHYA BHARAT 82 itself was considered to be slightly distinguishable by the Allahabad High Court because the warrant of attachment was sent to the Nazir of the Court within the local limits of whose jurisdiction the property was situated and it was held that the attachment was illegal. We are not concerned with such a situation here.