LexRAJENDER SINGH versus RAMDHAR SINGH AND ORS.
Open in Lexace · Ask the AI about this caseJudgment (excerpt)
A RAJ EN DER SINGH v. RAMDHAR SINGH AND ORS. MAY 11, 2001 B [UM ESH C. BANERJEE AND K.G. BALAKRISHNAN, JJ.] Civil Procedure Code, 1908 Section I 36-At1ac/1111ent order-Property/a/ling outside the jurisdiction C of the issuing authority-Procedure for execution-Non-compliance with- Attachment challenged as invalid-Held, the non-compliance will not invalidate the allachment order as such since defect in the procedure could be cured-Order 38 Rules 5 and 7. D Order 38 Rule 5(/) (as amended by Amending Act, 1976) and Section 136-Di.lference between. E F Auction sale-Execution proceedings-Challenge on ground of insufficiency of consideration-Held, mere inadequacy of consideration is not a ground for setting aside Court sale. In a money suit filed by the appellant-plaintiff certain property of the defendant falling in another district was attached. The order was sent directly to Subordinate Judge, and not through District Judge of the concerned district. After ex-parte decree of the suit in execution proceedings, the property was auction-sold and was purchased by the appellant-decree holder. Respondents filed a case for release of the land from attachment as they had purchased the property from the judgment debtor. The case of the respondents was rejected by the execution Court. Respondents filed Revision Petition before High Court c~ntending that the attachment of property by the appellant-decree holder was not i~ accordance G with Section 136 of Civil Procedure Code, 1908, and that since the agreements for sale of the property were prior to the atta.chment, the subsequent attachment would not prevail over the sale deeds executed pursuant to the agreements of sale; and t.hat the price, at which the appellant purchased the property in auction sale, was not adequate. High Court, on the ground of non- H compliance of procedure laid down in Section 136 C.P.C., set aside the auction 736 RJ\.IENDER SINGH v. RAMDI IAR SINGH 737 sale and allowed the Revision Petition. A Hence this appeal. Disposing of the appeal, the Court HELD : 1.1. The failure on the part of the Court which issued the B attachment order in sending the order and t~e connected papers to the District Court will not invalidate the attachment order as such though in view of Order XXXVllI Rules 5 and 7 and Section 136ofCivil Procedure Code, 1908, it is clear that for effecting attachment of property outside the local limits of a Civil Court, the mode prescribed is that the order of attachment shall be sent to the District Court within the local limits of whose jurisdiction the property C is situated and the District Court thereafter shall send the order of attachments to the Subordinate Court within whose jurisdiction the property is situated for effecting the attachment. Section 136 only lays down the procedure in case the property is situated outside the territorial jurisdiction of the Court. The District Court to which such order of attachment is sent is D only effecting the attachment and the power under Order XXXVIII Rule 5 is not as such exercised by that Court. By the Amending Act of 1976 a new sub- rule was added to Rule 5 of Order XXXVIll to the effect that if an order of attachment is made without complying with the provisions of sub-rule (1) of the said rule, such attachment shall be void. Therefore, importance is given to the mandatory conditions under Rule 5(1) of Order XXXVIII and there is E no such similar insertion in Section 136. (744-C-D; 745-CI Mariamma MatheH' v. lttoop Poulo, AIR (1952) Travancore--Cochin 159; Mookan Ouseph Thomakutty v. Puramundekat Padinjare Madathi/ Nanu, AIR (1963) Kerala 193; Bansropan Singh and Ors. v. Emperor, AIR (1937) Patna 603 and Haji Rahim Bux and Sons and Ors. v. Firm Smlu/lah and Sons, AIR F (1963) Allahabad 320, referred to. 1.2. The order of attachment is sent to the District Court when the property is situated outside the jurisdiction of the issuing authority. It is only to maintain the comity of Courts as, in some cases, the attachment order might G be issued by the Munsif/Civil Judge (Junior Division) and the property to attached might be within the jurisdiction of the Civil Judge (Senior Division)/ Subordinate Judge and in the fitness of things, Section 136 lays down the procedure that under such circumstances, the order of attachment should be sent to the District Court which is having supervisory jurisdiction over all subordinate Courts
Excerpt shown. Read the full judgment & AI analysis in Lexace.