NARESH CHANDRA LAHIRI Vs. JOGESH CHANDRA MAJUMDAR

JUDGEMENT

(1.) This is an appeal on behalf of the judgment-debtor from the order of the Subordinate Judge of Rangpur dated 11 March 1933 by which he refused to set aside the sale held in execution of a money decree on 11 August 1932. In order to understand the contention of the appellant who is aggrieved by the order of the Subordinate Judge refusing to set aside the sale a few facts need be stated. It appears that on 9 September 1932 the judgment-debtor made an application of setting aside of a sale in which he alleged several grounds of irregularity. The petition is to be found at p. 29 part 1 of the paper book. It is not necessary to refer to all the grounds of irregularity alleged. Before us Mr. Bose who appears for the appellant has confined his argument mainly to one irregularity. He has argued that the sale is bad because there has been no attachment of the properties directed to be sold and consequently the sale cannot stand. It appears that before the money decree was passed an application had been made on behalf of the decree holder respondent who was the plaintiff in the suit for attaching before judgment the property which has now been sold. In pursuance of the said application an order was made to the following effect on 16 January. In the meantime the property described in the petition be conditionally attached before judgment.

(2.) There is a subsequent order of 18 March 1931 when the present appellant appeared where it was stated that the suit was adjourned to 2 April, 1931 for filing compromise petition as well as to show cause why attachment should not be made before judgment if necessary. On 2 April, the defendant that is the present appellant filed a written statement and prayed for its acceptance on the allegation that no compromise having been effected it was necessary for him to file his defence. The plaintiff objected. His objection was rejected and the defendant was allowed to file the written statement. The matter was adjourned to 8th April 1931. On 8 April 1931 no cause against the attachment before judgment was shown and the Court directed that in those circumstances the attachment should be made absolute. It appears that the order of attachment before judgment which was dated 19 January 1931 was drawn up in the manner provided for in Order 21, B. 54, Civil P. C., and it was served by beat of drum and by the other methods mentioned in that order. It is contended before us by the appellant in the first place that the conditional order of attachment became merged in the final order making the attachment absolute which was passed on 8 April 1931; and as such it became necessary for the Court to issue a fresh attachment. In support of this position reliance has been placed on the decision of their Lordships of the Judicial Committee in the Privy Council case of Muthiah Chetti V/s. Palaniappa Chetti AIR 1928 PC 139 and our attention has in particular been drawn to the passage in their Lordships judgment which appears at the bottom of p. 261 (of 55 I A) and on the top of the p. 262 (of 55 I A). Their Lordships after referring to the provisions of Order 21, Rule 54 observed as follows: In view of the provisions the Board listened with some surprise to a protracted argument which culminated in the proposition that a property was in law attached whenever an order for attachment was made. The result, if this were so, would be that a person holding an order could dispense with attachment altogether, as an operation or a fact. Their Lordships need not repeat in another form these propositions. The order is one thing, the attachment is another. No property can be attached unless first the order for attachment has been issued and secondly in excution of that order the other things prescribed by the rules in the Code have been done.

(3.) There is nothing in this judgment of their Lordships of the Judicial Committee to show that where a conditional order for attachment before judgment has already been issued it is necessary to issue or serve a fresh order of attachment before judgment after the conditional order had been made absolute, as it was done in the present ease on 8 April 1931. The attachment before judgment in this case was evidently made in pursuanoe of the provisions of Sub-Clause (3), Rule 5, Order 38, which enacts that the Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. In these circumstances we are of opinion that there is no foundation for the contention that a fresh notice of attachment before judgment should issue. Indeed no such provision was made in the Code and it seems to us to be contrary to common sense that a fresh application for attachment should be made after the order of attachment before judgment was served. Indeed in very wide terms it states among other things this: It is ordered that you are hereby prohibited and restrained until further orders of this Court from transferring or charging the attached property specified in the schedule hereunto annexed by sale, gift or otherwise and that all persons be and they are hereby prohibited from receiving the same by purchase, gift or otherwise.