Attachment becomes effective from the date of actual service and not from the date of the order.

Choudhary, J.

1. This is an application in revision by the plaintiff and is directed against an order of the Munsif of Jamshedpur dated 17-9-1952, whereby he allowed the claim of Lukhia Kumarin, opposite party 2, and released certain property from attachment.

2. The petitioner filed a money suit, No. 534 of 1951, on the basis of a handnote, on 22-9-1951, and, on the same date, filed an application for attachment before judgment of a house, belonging to the defendant, under the provisions of Order 38, Civil P. C. The learned Munsif issued rule on that application, and passed an ad interim order of attachment. The attachment, however, was actually effected on the spot on 25-9-1951, but a day earlier, that is, on 24th September, the defendant, who is opposite party 1 in this case, executed a sale deed in favour of opposite party 2, who is his sister. She objected to the attachment and preferred a claim on 10-4-1952. Both parties adduced evidence in the case, and on consideration of the evidence, the learned Munsif came to the conclusion that the claimant was possessed of the house property in her own right on the date of the attachment. He, therefore, allowed the application and released the house from attachment. Against that order the plaintiff has come up to this Court in revision.

3. The question that arises to be considered in this case is whether an attachment of a property becomes effective from the date on which the order for attachment is passed, or from the date when the attachment is actually effected on the spot. The case came up for hearing before a single Judge, but in view of the question raised as stated above, it was referred to a larger Bench.

4. Mr. B. C. De, on behalf of the petitioner, has contended that the order of attachment having been passed on 22-9-1951, that is, before the sale deed was executed in favour of opposite party 2, the sale was void inasmuch as the attachment became effective from the very date of the order and not from the date When the attachment was actually made. In support of his contention, he has placed reliance on the case of --Venkatasubbiah V/s. Venkata Seshaiya, AIR 1919 Mad 752 (A). In that case, an order for attachment before judgment was made, but it was actually effected after the decree was passed in the suit. It was contended that, since the attachment was completed after the decree in the suit was passed; there wag no attachment before judgment, and the attachment made subsequent to the passing of the decree was invalid. This contention was rejected. In rejecting that contention their Lordships made certain observations and Mr. De has based his argument on those observations. Phillips J. observed:

"It seems to me that when a Court makes an order under Order 38, Rule 6, C. P. C. that order cannot be deprived of all force by the mere failure of the executive officers of the Court to carry it Out before the decree is passed. The attachment when effected is an attachment made in pursuance of an order to attach before judgment and must be treated as an attachment before judgment and not as a nullity merely because, as a matter of fact, the attachment is not completed until after judgment. To adopt the opposite view would be to allow a formal judicial order to be upset by the negligence or default Of a subordinate ministerial officer."

Kumaraswami Sastri J. observed:

"Any delay of the officers of Court in effecting the attachment should not prejudice the decree-holder and the validity of the order of attachment under Rule 5, Order 38, should not depend on the date when it is actually effected."

5. The argument of Mr. De is that the above observations of their Lordships indicate clearly that an order passed by a Court becomes effective from the date when it is passed and not when the formalities, which have to be observed in carrying out that order, are actually performed. It is, therefore, contended by him that in the present case the attachment would take effect from 22-