2001 Supreme(SC) 896

2001(4) Supreme 170
SUPREME COURT OF INDIA
(From Patna High Court)
Umesh C. Banerjee & K.G. Balakrishnan, JJ.
Rajender Singh -Appellant
versus
Ramdhar Singh & Ors. -Respondents
Civil Appeal No. 4394 of 1991
Decided on 11-5-2001
Counsel for the Parties :
For the Appellant : Lakshmi Raman Singh and Amitesh Kumar, Advocates.
For the Respondents : Ajit Kumar Sinha, Advocate.

IMPORTANT POINT
High Court was wrong in setting aside auction sale in attachment before judgment on grounds that attachment order passed was invalid as it was sent directly to another Court and not through District Court and that sale was for an inadequate price but it ought to have considered another question raised regarding two agreements of sale prior to date of attachment and their effect on attachment, hence case remanded to High Court subject to certain observations made in this judgment.

Headnote:(i) Civil Procedure Code, 1908-Order 38, Rules 5 and 7 read with Section 136-Order for attachment before judgment of properties situated in jurisdiction of another Court-Order sent directly to another Court without sending it to District Court within the local limits of whose jurisdiction such property situated as required under Section 136-Single Judge of High Court held it was invalid-Whether correct? (No)-Case law considered on difference of opinions.

       Held : 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 might 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 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 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 not 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 XXXVIII 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. (Paras 15 and 16)

       (ii) Civil Procedure Code, 1908-Order 38, Rules 5 and 7-Attachment before judgment-Set aside on ground of inadequacy of price in the absence of any fraud or material irregularity in the conduct of Court s auction sale-Whether correct? (No).

       Held : The other ground for setting aside the same is the inadequacy of the price. The respondents have not alleged any fraud or material irregularity in the conduct of the Court s auction sale, whereby they suffered injustice. Mere inadequacy of the price is not a ground for setting aside the Court sale. That finding of the learned Judge also is not sustainable in law. (Para 17)

       (iii) Civil Procedure Code, 1908-Order 38, Rule 5-Attachment before judgment-Objections to set aside-That there were two deeds of agreement to sell before date of attachment-Rejected by executing Court-Not considered by High Court in revision-Appeal against-Case remanded to High Court to consider it-Order accordingly.

       Held : The respondents had also urged another ground to set aside the same, namely, that there were two deeds of Baibeyana (Agreements to sell), one on 9.2.1974 and another on 16.2.1974 prior to the date of attachment, namely, 6.3.1974. The respondents had contended before the Execution Court that these agreements should prevail over the attachment but this plea was rejected by the Subordinate Judge on the ground that the attachment does prevail over the pre-existing contract to sell even though the attaching creditor has no notice of a contract to sell. The very same plea was advanced before the learned Single Judge of the High Court but the same was not considered as the decision was taken in the matter having regard to non-compliance of Section 136 of the Code of Civil Procedure and the learned Single Judge felt that it was not necessary for him, in this case, to consider that plea. As we have taken a contrary view regarding Section 136, the matter has to go back to the learned Single Judge to consider the plea raised by the respondents regarding the two agreements allegedly executed by them. It may be noted that as regards the question whether the agreement entered into by the judgment debtor prior to the attachment of property in execution of a decree would prevail over the attachment itself, was considered by this Court in Vannarakkal Kallalathil Sreedharan v. Chandramaath Balakhshnan and another [1990(3) SCC 291] and this Court approved the views expressed in Paparaju Veeraraghavayya v. Killaru Kamala Devi, AIR 1935 Mad. 193; Veerappa Thevar v. C.S. Venkatarama Aiyar, AIR 1935 Mad. 872; and Angu Pillai v. M.S.M. Kasiviswanathan Chettiar, AIR 1974 Mad. 16 followed by Rango Ramachandra Kulkarni v. Gurlingappa Chinnappa Muthal AIR 1941 Born. 198; Yeshvant Shankar Dunakhe v. Pyaraji Nurji Tambol, AIR 1943 Bom. 145; and Kochuponchi Varughese v. Ouseph Lonan, AIR 1952 TC 467 and held that the agreement for sale creates an obligation attached to the ownership of property and since the attaching creditor is entitled to attach only the right, title and interest of the judgment debtor, the attachment cannot be free from the obligations incurred under the contract for sale. It is for the learned Single Judge to consider these aspects having regard to the nature of the agreements alleged to have been executed by the respondents on 9.2.1974 and 16.2.1974. As the learned Single Judge has not considered the questions raised by the respondents regarding the two agreements and their effect on the attachment, the matter has to go back to High Court to be considered afresh subject to the observation made by us above. It is ordered accordingly. As this litigation has been protracted and delayed, the learned Single Judge before whom the matter comes up for decision is requested to dispose of the same at an early date. The appeal stands disposed of accordingly. Parties to bear their respective costs. (Paras 18 to 23)