MONOHARLAL BANERJEE Vs. BENGAL IMMUNITY CO LTD

JUDGEMENT

(1.) This appeal arises out of a suit under the provisions of Order 21, Rule 63, Civil P. C., for a declaration of the plaintiff-appellant's title to premises No. 24, Bhabananda Road, Tollygunge, which were originally P318, Russa Road, and for the release of the said premises from attachment in execution of a decree obtained by defendant 1, the Bengal Immunity Company, against one Haridas Banerjee, defendant 2 in the suit. The facts in so far as they are material for the purposes of this appeal are as follows: On 26 October 1933 Charulata, wife of Haridas Banerji, acquired the premises in suit by purchase as the benamidar of her husband. The benami nature of the transaction has been found as a fact by the Court below, and that finding is not challenged. On 5 December 1934 Charulata mortgaged the property to one Pulin Krishna Roy, by a deed in which Haridas joined as a confirming party. Haridas, who was employed by the Bengal Immunity Company, was charged with defalcation of the money of his employers who instituted criminal proceedings against him which led to his conviction at the High Court Sessions. On 23 November 1934, Haridas was a prisoner in the Presidency Jail in consequence of these proceedings. The Bengal Immunity Company instituted also a suit on the original side of the High Court for recovery from Haridas of the amount said to have been misappropriated by him. In this suit, and while it was pending, the plaintiffs (The Bengal Immunity Company) applied for attachment before judgment of No. 24, Bhabananda Road, Tollygunj (P318, Russa Road), and also at the same time for an "interim attachment and injunction pending the hearing of the application." The prayer for notice of motion to issue was granted, and here it should be noted that as minuted, the order of the Court on the prayer for interim attachment and injunction was "interim injunction to issue." At the foot of the notice of motion, there appears however an endorsement over the signature of the Assistant Registrar which is in these terms: "N.B.--That interim attachment and injunction pending the hearing has this day been granted." On the same day, that is 23 November, the notice of motion was served on Haridas, the service being effected by an attorney's clerk in the following manner: One copy of the notice of motion was delivered to the brother-in-law of Haridas at the latter's residence at No. P318, Russa Road, and another copy was taken to the Presidency Jail, where Haridas was at the time incarcerated, and was delivered to the Superintendent of the Jail for service on Haridas who refused to accept it. It is not disputed that nothing to signify that an attachment of immovable property was sought to be effected was done thereafter until 17 December following. Meanwhile, as already stated, the property in suit was, on 5 December, mortgaged by Charulata and Haridas to Pulin Krishna Roy. The application for attachment before judgment was finally heard and granted on 3 December. The material words of the order are these: It is ordered that a writ of attachment do issue out of and under the seal of this Court commanding the Sheriff of Calcutta to attach until the final disposal of this suit or until the further order of this Court the premises No. P318, Russa Road . . . and it appearing that the properties to be attached as aforesaid are situated within the local limits of the jurisdiction of the Court of the District Judge of 24-Parganas it is further ordered under the provisions of Section 136, Civil P.O., to send a copy of the said writ of attachment... to the said Court of the District Judge of 24- Parganas for execution. This order was implemented on 17 December by service of the writ of attachment in the manner prescribed by Order 21, Rule 54 (2), that is to say, by proclaiming the contents of the writ of attachment by beat of drum upon the land of the premises in suit, and by affixing a copy of the writ of attachment on the outer door of the pucca building situated on that land. These acts were done by a process server of the Court of the District Judge of Alipore, 24-Parganas. On 19 May, 1937 Pulin Krishna Roy, the mortgagee, instituted a suit for enforcement of the mortgage, and in due course obtained a decree in execution of which he himself purchased the property. He obtained delivery of possession on 24 December, 1938 and sold the property to the plaintiff in the present suit on 11 January, 1939. It has been found as a fact that this sale was a bona fide transaction and no question of collusion arises.

(2.) To go back to the suit of the Bengal Immunity Company against Haridas; the former obtained a decree which was put into execution through the Court of the first Subordinate Judge of Alipur, 24-Parganas. An attachment of the property in execution of the decree under Order 21, Rule 54 was again effected, and this was done on 18 July 1938. The plaintiff preferred an application under the provisions of Order 21, Rule 58 on 22 May, 1939, which was rejected, on 24 May 1939, and then the plaintiff instituted the present suit which has been dismissed by the Court below. The only question which arises for consideration in this appeal is whether the mortgage by Charulata in favour of Pulin Krishna Roy, which was executed on 5 December 1934, could operate to pass any interest in the property as it took place after 23 November 1934, on which date the notice of motion and interim attachment were directed to issue and on which day also they were served by the attorney's clerk in the manner stated above. Section 64 of the Code provides as follows : Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment- debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment.

(3.) Now it is beyond dispute, that an attachment to render a subsequent alienation invalid must be made in the manner prescribed by law. Attachment, as the Privy Council has laid down in Muthiah Chetti V/s. Palaniappa. ( 28) 15 A. I. R. 1928 P. C. 139 at p. 261 is a real thing distinct and separate from an order for attachment. Lord Shaw said in that case : A fasciculus of clauses, beginning at Rule 41 of Order 21, and applicable to attachment of property , shows in instance after instance that attachment is a real thing with a variety of real applications suited to the nature of the property to be attached... these instances go to show that under the Civil P. C. in India the most anxious provisions are enacted in order to prevent a mere order of a Court from effecting attachment and plainly indicating that the attachment itself is something separate from the mere order, and is something which is to be done and effected before attachment can be declared to have been accomplished... Their Lordships need not repeat in another form these propositions. The order is one thing, the attachment is another. No property can be declared to be attached unless first the order for attachment has been issued, and secondly, in execution of that order the other things prescribed by the rules in the Code have been done.