cpc

attachment before judgement


kindly provide information about ABJ from banker point of view...
 
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LAWYER

n Mariaimma Mathew v. lttoop Paulo, AIR (1952) Travancore-Cochin 159, the
full Bench of the Travancore-Cochin High Court held that the procedure
prescribed under Section 136 Civil Procedure Code is not mandatory so long
as the Court effecting the attachment has jurisdiction over the subject-
matter of attachment. In that case, one Munsif Court issued an order of
attachment in respect of 12 items of immovable properties out of which 11
items were situated within the jurisdiction of another Munsif Court The
attachment order and the connected papers were sent directly to the Munsif
Court within whose jurisdiction the property was situated. When the
plaintiff took steps to execute the decree by the sale of the attached
properties, the alienees who had purchased the properties from the judgment
debtor raised an objection to the effect that the attachment effected was
not valid, inasmuch as the order of attachment was not sent through the
District Court as enjoined by Section 101 of Travancore Civil Procedure
Code. Section 101 of the Travancore Civil Procedure Code is in part materia
with Section 136 of Civil Procedure Code, 1908. The Court after
elaboratedly considering the question held as under :

"The question is, when an order of attachment before judgment of properties
situated within the jurisdiction of one Court is made by another Court, the
provision in Section 101 to send the order of attachment to the District
Court within the local limits of whose jurisdiction the properties sought
to be attached are situated is only a mode of procedure prescribed or
whether the jurisdiction of the Court effecting the attachment will depend
upon the District Court's order in that behalf. Our considered view is that
the provision is only a procedural one and that so long as the Court
effecting the attachment has jurisdiction over the subject-matter or
attachment non-compliance with the provision in Section 101 can only amount
to an irregularity.

Sub-section 2 of Section 101 shows that when an order for attachment
before judgment passed by a Court is sent to the District Court, the latter
Court is bound to carry out the order itself or through a Court subordinate
to it. The only function of the District Court to which the order of
attachment is sent or of a Court subordinate to it which the District Court
might sent it is only to carry out the order and complete the formalities
of attachment, It other words, Section 101 prescribes the procedure, it
does not touch the jurisdiction,"

In Mookan Ouseph Thamakutty v. Puramundekat Padinjare Madathil Nanu, AIR
(1963) Kerala 193, a Single judge of the High Court followed Mariamma
Mathew v. Ittoop Poulo, AIR (1952) Travancore Cochin 159 and held that
Section 136 Civil Procedure Code prescribes only a procedure and does not
confer jurisdiction on the Court, which effects the attachment. The non-
compliance of that procedure being only a procedural defect, may be waived
if no objection is taken and it does not invalidate the attachment itself.

ln Bansropan Singh and Others v. Emperor, AIR (1937) Patna 603, the warrant
of arrest Was issued by Munsif of Korimako for arresting a judgment debtor
for recovery of money. As the judgment debtor was evading arrest, the Civil
Court peon alongwith three police constables approached the house of the
judgment debtor and the peon informed that he had a warrant of arrest
against the judgment debtor. The person who was found in the house of the
judgment debtor tried to run away but the peon Caught him. He cried for
help and the judgment debtor came out of the house and wounded the police
constable with a dagger. The question arose whether the warrant issued by
the Munsif Court, Kohima was valid. The judgment debtor was residing within
the jurisdiction of Munsif Court, Buxar. It was contended that as the
warrant was not endorsed to the District Court and as the warrant had to be
executed outside the jurisdiction of the issuing court, it was not validity
issued. Under that circumstances, the Court held that when a Court
exercises the extraordinary powers conferred oil it by Section 136, Civil
PX., the provisions--of that section must be strictly observed; arid the
warrant must be endorsed to the District Court outside the jurisdiction of
the issuing Court in which the warrant is to be executed. The warrant
against judgment debtor was therefore held to be defective,

In another case reported in AIR (1963) Allahabad 320,Haji Pahim Bux and
Sons and Others v, Firm Samiullah find Sons a decree holder had obtained
order of attachment before judgment. After the decree, he applied for
execution thereof by sale of the property attached. The sale was notified
and in the meantime, an objection was raised that the attachment of the
property made before judgment was invalid and that the property could not
be sold. The sale was adjourned and as there was no stay, the property was
actually sold and the objection filed by the appellants came up for
consideration later. The objection was dismissed and in the appeal, the
High Court held that as the attachment was not in accordance with Section
136 of the Code of Civil Procedure, it was invalid. The Court held in
paragraph 9 at page 323 as under:

"A plain reading of these two sub-sections will show that where the
property to be attached is situate outside the local limits of the
jurisdiction of the Court to which an application for the purpose is made,
an order of attachment has to be sent to the District Court within the
local limits of whose jurisdiction the property is situate together with
the probable amount of the costs of the attachment. On receipt of the order
of attachment, the District Court may cause the attachment to be made by
its own officers or by a Court subordinate to it. Primarily, therefore,
jurisdiction to make an attachment on the authority of a precept received
from an outside Court vests in the District Court. A Court subordinate to
the District Court may attach the property in compliance with the order of
attachment received but that would be possible only if the District Court
requires it to do so. It is the District Court, which has jurisdiction to
cause the attachment 'to- be made by its own officers or by a Court
subordinate to itself. In the absence of a direction of the District Court
to that effect, therefore, any attachment, which may be made by a
subordinate Court in pursuance of a precept received from a Court in
another district would be without jurisdiction and consequently void." the
Counsel for the appellant: contended that the views taken by the Allahabad
High Court and Patna High Court are not correct. In the above two
decisions, the Court had held that when the property to be attached is
situate outside the local jurisdiction of the Court to which an application
for the purpose is made, an order of attachment has to be sent to the
District Court within the local limits of whose jurisdiction, the property
is situate, and it is the District Court which may cause the attachment of
the property and, therefore, the attachment order passed by the issuing
Court without sending the papers to the District Court is invalid and
defective. Though, in Section 136 of the Civil Procedure Code, it is stated
that the District Court shall, on receipt of the order of attachment or
order of arrest as the case may be, cause the attachment or arrest to be
made by its own officers or by a Court subordinate to itself, in effect,
the order is as such not passed by the District Court. The Court which
passes the attachment before judgment passes the same under Order XXX VIII
Rule 5 of the Code. The said rule gives authority to the Court to pass
attachment before judgment after being satisfied by affidavit or otherwise,
that the defendant, with intent to obstruct or delay the execution of any
decree that may be passed against him may try to dispose of the property.
Before issuing such order of attachment, the Court must satisfy itself that
the, defendant is about to dispose of the whole or any part Of his
property, or is about to remove the whole or any part of his property from
the local limits of the: jurisdiction of the Court.

It is only on the satisfaction of these conditions, the Court can pass an
order of attachment under Order XXXVIII Rule 5. Rule 7 of Order XXX VIII
says that such attachment shall be made in the manner provided for the
attachment of the property in execution of a decree.

Section 136 of the Code of Civil Procedure lays down the procedure to be
followed where the person to be arrested or property to be attached is
outside the District Court which passes the order of arrest or attachment.
Section 136 only lays down the procedure in case the property is situate
outside the territorial jurisdiction of the Court. The District Court to
which such order of attachment is sent is only effecting the attachment and
the power under Order XXXVIII Rule 5 is not as such exercised by that
Court.

In MG. Brothers v. Shah Talchand Parswachand & Co., AIR (1963) Mys. 147. it
was held that the Court passing the order of attachment has got the power
to raise the attachment. In that case, a warrant was issued under Section
136 of the Code by the Subordinate Judge, Kunoor to the District Court,
Bellary in which a lorry was attached, and a claim was preferred before the
District Judge and he made an order raising the attachment on the claimant
furnishing security. The High Court held that the Court which could hear
the claim was the Court which made the order of attachment and not the
Court which actually effected the attachment.

The order of attachment is sent to the District Court when the property is
situate outside the jurisdiction of the issuing authority. It is only to
maintain the comity of Courts as. in some cases, the attachment order mignt
be issued by the Munsif 'Civil Judge (Junior Division) and the property to
be attached might be within the jurisdiction of the Civil Judge (Senior
Division)/ Subordinate Judge arid in the fitness of things. Section 136
lays down the procedure (hat under such circumstances, the order of
attachment should be sent to the District Court which is having supervisory
jurisdiction over all the subordinate Courts within that district- It is
only a procedure and if the owner of the property raised an objection to
the effect that the procedure was not complied with, Court can issue
appropriate direction to cure the defect in the procedure. If such an
objection was not raised within a reasonable time, we do hot think that the
attachment order itself could be treated as invalid.

It is also pertinent to note that by the Amending Act of 1976, a new sub
rule was added to Rule 5 of Order XXX VIII 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, the importance
is given to the mandatory conditions under Rule 5(1) of Order XXXVIII and
we do not find any such similar insertion in Section 136. Therefore, the
failure, if any, on the part of the Court which issued the attachment order
in sending the attachment order and the connected papers to the District
Court will not invalidate the attachment order as such. Therefore, the
learned Single Judge of the High Court was not correct in holding that the
attachment order passed by the Subordinate Judge, Biharsharif was invalid.

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Advocate

1. The P.O. of  DRT  can also  pass order  of attachment before Judgement while hearing the Original Application filed by the Bank against its defaulting Borrower/Guarantor.

2. In the above event the said order for attachment shall have to be pasted on the attached property and photographs thereof shall have to be obtained as evidence of the said attachment as per DRT Order.

 

 
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