KOLKAR PUILAMMA Vs. S G NAGOJI RAO

JUDGEMENT

(1.) 1. The plaintiff Is the appellant. He had filed the suit to set aside a claim order. The only point involved In this Second Appeal is whether the attachment ordered by the Subordinate Judge's Court. Kurnool In I. A. No. 384 of 1960 in O. S. No. 46 of 1960 and the order of attachment communicated directly to the District Munsiff's Court Gooty and not through the District Court. Anantapur is valid and subsisting. In order to appreciate the point involved in this Second Appeal certain facts are to be stated. One Balajlrao was the owner of the three items of the suit property, the first two items being land and the third item being a house site. An attachment was subsisting on this property in another suit. Balajirao had filed a Stcond Appeal (S. A. No. 1015 of 1957) in the High Court of My. sore. In that Second Appeal certain directions were issued by the Mysore High Court permitting Balajirao to sell the property by a private sale and to deposit the proceeds to the credit of S. C. NO. 197 of 1952 on the file of the Subordinate judge's Court, Hubll. In pursuance of this direction of the Mysore High Court, Balajirao sold the suit property to the plainilff for a sum of Rs. 2000/-on 23-12-1961. The decretal amount was deposited by Balajirao to the credit of S. C. No. 197 of 1952 on the file of the Subordinaae judge's Court. Hubli as directed by the High Court of Mysore. The plaintiff had purchased thij property and since then was in possession of the same However, before the sa.e of the suit property to the plaintiff, the 1st defendant filed O.S, No. 46 of 1960 on the file of the Subordinate judge's Court. Kurnool against Balajirao, This was a money suit. Along with the suit the 1st defendant had filed I.A. No. 384 of 1960 for attachment before judgment and the Subordinate judge's Court ordered the attachment on 4-11-1960. Since the property attached was In Anantapur district, the Subordinate judge's Court, Kurnool instead of sending the order of attachment through the District Court, Anantapur sent Ir. directly to the Munslf's Court, Gooti for execution. No objection whatsoever was taken by Balajirao against the communication of such order of attachment before judgment. The 1st defendant finally obtained a decree against Balajirao and In execution of the decree got the suit items attached and the second defendant who is the son of the 1st detendan: purchased items I and 2 in Court auction while the 3rd defendant purchased Item No. 3. At this juncture the plaintiff Intervened with the claim petition E.A. No. 196 of 1964 in E.P. No. 195 of 1963, That petition was dlsmised Hence the present suit, iso not cho

(2.) The plea of the defendants was that the plaintiff had no means to pay the purchase price of Rs, 2,000/- to Balajirao and that the transaction between Balajirao and the plaintiff in pursuance of the direction of the High Court of Mysore Is a nominal one. They also pleaded that the direction of the Mysore High Court was (ong after the present attachment and hence the sale was invalid. They also pleaded that the sale was hit by Sec. 53 of tha Transfer of Property Act as it was Intended to defraud the creditors of Balajirao. Finally it was pleaded that the plaintiff was not In possession. But Balajirao was in actual possession of the property. The trial Court found that the sale by Balajirao in favour of the plaintiff on 23-12-1961 as per the directions of the Mysore High Court was long after the present attachment and therefore it was Invalid. It also found that the plaintiff had no capacity to purchase the property from Balajirao for Rs, 2,000/- and that the plaintiff was not In possession thereof. It also found that the sale was not hit by Sec. 53 of the Transfer of Property Act and consequently dismissed the suit. The first appellate Court dismissed the appeal but reversed the finding of the trial Court on the question of sale being nominal.

(3.) In this Second Appeal Mr. Sub- rahmanyam, the learned counsel appearing on behalf of the appellants, contends that a perusal of Sec. 136 C.P.C. would show that it was the duty of the Subordinate Judge's Court Kurnool to transfer the order of attachment before judgment to the District Court at Anantapur to be executed by the Munsiff's Court Gooty. that this was a matter relating to the Jurisdiction of the Court and since it has not been complied with, the attachment before judgment cannot be considered to have been valid and subsisting at the time when the plaintiff purchased the suit property from Balajirao. In support of his contention the learned counsel cited the decisions in Rahim Bux & Sons v. Firm SamiuUah & Sons (I) A.I.R. 1963 Allahabad 320, Sachlndra Kumar v. Usha Provade (2) AIR 1949 Calcutta 690, and Bhagwan Das v. Santosh Singh (3) AIR. 1968 Punjab 461. He was also fair enough to cite the decision in Mariamma v. Ittoop Poulo (4) A. I. R. 1952 Travan- core Cochin which Is a judgment of a full Bench of the Kerala High Court and in which it was held that the provisions of Sec. 136 C. P. C. are only procedural and do not pertain to the jurisdiction of the Court. Therefore if an order of attachment before judgment has been sent directly to the Court in whose jurisdiction the property is situated without the media of the concerned District Court, it is only a procedural Irregularity. I am not prepared to accept the contention advanced by Mr. Subrahmanyam, learned counsel for the appellants. A look into Sec. 136 of the Code of Civil Procedure would show that the duty that has to be performed by the District Court is that of a post office. It has only either to carry out the orders of the transfer on Court itself or to send it to the concerned court in whose jurisdiction the property Is situate. Therefore it cannot be said that Sec. 136 C.P.C relates to the jurisdiction of the transferee Court and that It is incumbent upon the Subordinate Judge's Court, Kurnool to send its orders for execution to the District Court at Anantapur which Court would have forwarded the same order to the Munsiffs Court. Gooty for execution. I am in respectful agreement with the decision of the Kerala High Court in Mariamma v. Ittoop Poulo (4) Supra. Even in Bhagwan Singh v. Barkat Ram (5) A,U. 1943 Lahore 129 it was decided that it was a case of irregularity consisting in non compliance with the procedure prescribed for the transmission of the certificate. In that case the question Involved was one under Or. 21 Rule 5 C.P.C. and the transferee Court insead of sending the decree tor execution to the District Court of another district in whose jurisdiction the property was situate sent the decree for execution directly to the Subordinate Judge in that district. It was held by the Lahore High Court that such transfer does not pertain to jurisdiction. I am not prepared to accept the reasoning adopted by the Allahabad and Calcutta High Courts, because I am of the opinion that the wording of Sec. 136 C.P.C. does not at ail bring in the question of Jurisdiction but prescribes only the procedure.