NARESHCHANDRA MITRA Vs. MOLLA ATAUL HAQ

JUDGEMENT

(1.) In this case, the Subordinate Judge has allowed an application under Order XXI, Rule 90 of the Civil P. C., and set aside a sale on the ground that there was no legal attachment, as the writ of attachment gave an inaccurate description of the property sold. The boundaries of the property were correctly given, but instead of describing it as 46-8, Canal East Road, No. 46-1 was given. He held that there was in fact no attachment of the property to be sold, i.e., "No. 46-6, but that the attachment was made of No. 48-1. The question in the appeal, therefore, is whether a sale held without attachment is necessarily bad.

(2.) The appellant decree-holder contends that the omission to attach is a mere irregularity, while the respondent judgment-debtor relies upon Order XXI, Rule 64 of the Code and two decisions, namely, the decision of Fletcher, J. in Panchanan Das Majumdar V/s. Kunja Behari Malo 42 Ind. Cas. 259 and that of the Judicial Committee in Thakur Barmah V/s. Jiban Ram Marwari 21 Ind. Cas. 936 : 41 C. 590 : 41 I.A. 38 : 18 C.W.N. 313 : 15 M.L.T. 137 : 12 A.L.J. 156 : 19 C.L.J. 161 : 26 M.L.J. 89 : 16 Bom. L.R. 156 : (1914) M.W.N. 118 (P.C.) for the proposition that the sale was without jurisdiction.

(3.) The question arose under Act VIII of 1859, in the case of Macnaghten V/s. Mahabir Pershad Singh 9 C. 656 : 10 I.A. 25 : 11 C.L.R. 494 : 4 Sar. 417 : 4 Shome L.R. 285 : 7 Ind. Jur. 164 (P.C.) but was given up and so was not decided. It also arose under that Act in the case of Sharoda Moyee Burmonee V/s. Wooma Moyee Burmonee 8 W.R. 9 in which it was held that an attachment was not an essential preliminary to a judicial sale. It again arose under the Code of 1882 (compare Section 284, of which the wording was the same as in Order XXI, Rule 64 of the present Code in Kishory Mohan Roy V/s. Mahomed Mujaffar he ssein 18 C. 188 where it was held that the attachment is a measure resorted to for the protection of the decree-holder and the purchase against intermediate alienation, and that, after a sale has been confirmed, it is not to be considered a nullity because there was no attachment. This view was approved of in the case of Tincouri Debya V/s. Shib Chandra Pal Chowdhury 21 C. 639. Absence of attachment has been considered a mere irregularity in Sheodhyan V/s. Bholanath 21 A. 311; Sasirama Kumari V/s. Meherbam Khan 9 Ind. Cas. 918 : 13 C.L.J. 243; Muthiah Chetty V/s. Palaniappa Chetty 70 Ind Cas. 432 : 45 M. 90 : (1921) M.W.N 764 : 41 M.L.J. 594 : 15 L.W. 190 : A.I.R. 1922 Mad. 447 and Ma Pwa V/s. Mahomed Tambi 77 Ind Cas. 368 : 1 R. 533 at p. 537 : A.I.R. 1924 Rang. 124.