Patna High Court
Ramhari Lal And Ors. vs Nathu Ram And Ors. on 5 May, 1921
Equivalent citations: 62IND. CAS.33, AIR 1921 PATNA 140
JUDGMENT Das, J.
1. This application is directed against an order passed by the learned Subordinate Judge, First Court, Patna. It appears that the petitioners obtained a decree against certain persons, whose names are not material for this decision, on the 22nd March 1919, in the Court of the Subordinate Judge, Second Court, Patna. On the 31st of January 1919 they applied for and obtained an order attaching the properties in dispute before judgment. Subsequent to this the opposite party obtained a decree against the same persons in the Court of the Subordinate Judge, First Court, Patna, and attached the identical property some time in August 1920. The petitioners thereupon made an application before the learned Subordinate Judge, First Court, under Section 63 of the Civil Procedure Code. Their contention before the learned Subordinate Judge was that the only Court which could sell the property was the Court of the Subordinate Judge, Second Court, inasmuch as it was that Court that had first attached the property. The learned Subordinate Judge did not accede to the argument that was advanced before him and refused the application, and then directed the property to be sold in execution of the decree obtained by the opposite party.
2. Section 63 of the Code provides as follows: "Where property not in the custody of any Court is under attachment in execution of decrees of more Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof, shall be the Court of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first Attached." Sub-section (2) provides "Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees." As has been pointed out, the whole object of this section is to prevent different claims arising out of the attachment and sale of the same property by different Courts: in other words, to prevent confusion in the execution of decrees.
3. Now what are the facts? The property in dispute is under attachment in execution of decrees of more Courts than one. There is no difference in grade between the two Courts that have in fact attached these properties. The section lays down that in such circumstances the Court under whose decree the properties were first attached, in this case, the Court of the Subordinate Judge, Second Court, shall receive and realize such properties and shall determine any claim thereto and any objection to the attachment thereof. It is quite clear that the learned Subordinate Judge had no power whatever to sell the properties in execution of the decree obtained by the opposite party.
4. Mr. Lachmi Narain Singh on behalf of the opposite party argues that the attachment effected at the instance of the petitioners was an attachment before judgment and that, therefore, it cannot have priority over the attachment effected at his instance. This argument, in my opinion, is unsustainable. Order XXXVIII Rule 11, provides that "where property is under attachment by virtue of the provisions of this Order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for re-attachment of the property." In this case the property was in fact under attachment by virtue of the provision of Order XXXVIII and the decree was, as a matter of fact, subsequently passed in favour of the petitioners. In my opinion the effect of Rule 11 of Order XXXVIII is to give the same operation to an attachment before judgment after a decree is passed as to an attachment after judgment; and as the decree in favour of the petitioner was passed before the attachment was effected at the instance of the opposite party, the petitioners clearly are entitled to priority.
5. It was next argued on behalf of the opposite party that Clause (2) of Section 63 conferred jurisdiction upon the Court of the Subordinate Judge, First Court, to sell the property, although that was not the Court in whose jurisdiction the property was first attached. Sub-section (2) of Section 63 is a new provision. It settles the conflict between the High Courts of Calcutta, Bombay and Madras on the one band and the Allahabad High Court on the other; it declares in effect that the rule enunciated in Section 63 is a rule of procedure only and that it does not affect the question of jurisdiction. Sub-section (2) of Section 63 confers no jurisdiction whatever on a Court to sell the property when it has already been attached in execution of a prior decree by another Court; but it protects such sale when it has taken place in ignorance of prior rights. In this case it cannot be said that the Court acted in ignorance of prior rights. The petitioners placed all the circumstances before the Court and asked that Court to withhold its hand. The Court deliberately refused to do so and directed the sale to take place at once. In my view the order of the learned Subordinate Judge cannot be supported.
6. I have next to consider what we ought to do in the events that have happened. The sale has in fact taken place. It cannot be said that there was no jurisdiction in the Court of the learned Subordinate Judge to sell the property, The jurisdiction was there; only there has been an improper and, in my view, a deliberate abuse of jurisdiction.
7. In these circumstances the only order which we can pass is that which was suggested in the case of Bykant Nath Shaha v. Rajendro Narain Rai 12 C. 333 : 6 Ind. Dec. (N.S.) 227. The learned Judges in that case pointed out that where the property is sold by a Court which did not attach the property in the first place, then the Court (which first attached the property), instead of holding a second sale, should rather accept the sale held by the first Court and require the transfer to his Court of the assets realized, so that they may be rateably distributed amongst all the decree-holders in his Court. Sir Charles Sargent, C.J., in the case of Patel Narainji Morarji v. Haridas Navalram 18 B. 458 : 9 Ind. Dec. (N.S.) 815 took the same view, but he pointed out that the proper procedure was for the petitioner to apply before the District Judge to transfer the proceeds realised by the sale, held by the Court which ought not to have sold the property, to the Court which should have sold the property.
8. The proper order to pass in this case would be to give liberty to the petitioners to apply to the learned District Judge for an order transferring the proceeds realised by the sale held by the Subordinate Judge, First Court, to the Subordinate Judge, Second Court, and we order accordingly. The Subordinate Judge, Second Court, will, when the proceeds are transferred to his Court, proceed according to law.
9. Mr. Manuk says that he has got an application for setting aside the sale under Order XXI, Rule 80, and he is anxious that any action that he might take under our order may not prejudice him in the prosecution of that application. I do not think that it can. The scope of an application under Order XXI, Rule 90, is entirely different.
10. The petitioners are entitled to their costs, Hearing fee two gold mohurs.
Adami, J.
11. I agree.