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1951 Supreme(Ker) 121

Judges : KOSHI,GOVINDA PILLAI,VITHAYATHIL
Mariamma Mathew - Appellant
Versus
Ittoop Poulo - Respondent
Case No : C. R. P. No. 536,1097 of 1123
Decided On : 11/02/1951
Advocates Appeared :
For the Petitioner: N. Varadaraja Iyengar, Advocate. For the Respondent: K. P. Abraham; K. T. Ninan, Advocate.

The main legal point established in the judgment is the interpretation of procedural requirements for attachment under the Travancore Civil Procedure Code, specifically regarding the validity of attachment by a court and the affixture of the copy of the order of attachment on multiple properties under one order.

Headnote:

Attachment - Jurisdiction - Travancore Civil Procedure Code S. 101 - Validity of attachment - Affixture of copy of order of attachment - Interpretation of procedural requirements - Validity of attachment of multiple properties under one order

Fact of the Case:

The case involved three separate claims regarding properties attached before judgment, pursuant to an order of the District Munsiff, Perumpavoor. The properties were attached in O.S. 744 of 1112, with one item within the jurisdiction of the Perumpavoor Munsiff's Court and the remaining items within the jurisdiction of the Parur Munsiff's Court. The validity of the attachment and the affixture of the copy of the order of attachment were contested by the claimants.

Finding of the Court:

The court found that the attachment effected by the Parur Munsiff's Court was valid, despite the failure to transmit the attachment order through the District Court at Parur as required by S. 101 of the Travancore Civil Procedure Code. The court also held that for a valid attachment, a copy of the order of attachment should be affixed on each separate property, and failure to do so rendered the attachment invalid for certain properties.

Issues: The issues involved the validity of the attachment by the Parur Munsiff's Court, the interpretation of procedural requirements for attachment, and the affixture of the copy of the order of attachment on multiple properties under one order.

Ratio Decidendi: The court interpreted the procedural requirements for attachment and held that non-compliance with the provision in S. 101 of the Travancore Civil Procedure Code only amounted to an irregularity, not affecting the jurisdiction of the Court. The court also ruled that for a valid attachment, a copy of the order of attachment should be affixed on each separate property.

Final Decision: The court dismissed the revision petitions, upholding the validity of the attachment by the Parur Munsiff's Court and ruling that the failure to affix the copy of the order of attachment on certain properties rendered the attachment invalid for those properties.

Judgment :-

1. These two revision petitions arise from an order of the District Munsiff, Parur, disposing of three separate claims preferred regarding certain properties attached before judgement, pursuant to an order of the District Munsiff, Perumpavoor. In O.S. 744 of 1112 on the file of the Perumpavoor District Munsiff's Court the plaintiff sought for and obtained an order for attachment before judgment of 12 items of immovable properties. One alone among the 12 items was situated within the jurisdiction of that Court. The remaining items lay within the jurisdiction of the Parur Munsiff's Court. The attachment of the property within the jurisdiction of the Perumpavoor Munsiff's Court was effected on 24.12.1112 and with respect to the properties within the jurisdiction of the Parur Court the Perumpavoor Munsiff sent his order of attachment and the connected papers direct to the Parur Court instead of sending the same through the District Court at Parur as required by S. 101 of the Travancore Civil Procedure Code (a provision corresponding to S. 136 of the Civil Procedure Code Act V, 1908). The District Munsiff, Parur, got the 11 items situated within his jurisdiction attached by an Amin from his Court and his report shows that the attachment was effected on 7.1.1113. In due course the plaintiff's suit resulted in a decree in his favour and as he proceeded to execute it by bringing the properties attached before judgment to sale the three claims giving rise to the order under revision were preferred by three several alienees from the judgment-debtor. These claims raised two preliminary questions of which one was whether the attachment effected by the Parur Munsiff's Court was valid in as much as the order for attachment was sent direct to that Court instead of through the District Court at Parur as enjoined by S. 101 of the Travancore Civil Procedure Code. This preliminary point was found against by the learned Munsiff. On the authority of a Division Bench ruling of the Travancore High Court reported as Jacob v. Chachi -16 Travancore Law Times 368 - the Munsiff held that the failure to transmit the attachment order through the District Court at Parur was only an irregularity and not a matter affecting the jurisdiction of the Parur Munsiff's Court to effect the attachment.

2. The second preliminary point arose from the fact that on four alone out of the eleven items of properties situated within the jurisdiction of the Parur Court there was affixture of the copy of the order of attachment. The eleven items lay scattered in four muries and one item in each muri was selected for publication of the order by affixture. It was contended that, assuming the Parur Munsiff's Court could have validly attached before judgment these properties pursuant to an order of the Perumpavoor Munsiff's Court sent direct to that Court, no effective or valid attachment there would be unless there was affixture of the copy of the order on every one of the properties and that as there was admittedly no affixture on items 2, 4, 5, 7, 8, 9, and 12 these items were not in any event subjects of the attachment said to have been effected. This point found favour with the learned Munsiff and the decree-holder has preferred C.R.P. No. 1097 challenging the correctness of that view.

3. As a result of the decision on the second preliminary point all the items involved in claim petition No. 14123 of 1121 were found not to have been validly attached. The next claim C.M.P. 11189 of 1122, related to item 6 of the attachment schedule and to a building on item (1) which was within the jurisdiction of the Perumpavoor Court. The Munsiff not only found that these items were validly attached but also that the claimant obtained title to the properties under a document which came into existence when more than an year and a half had elapsed from the date of the attachment. That claim was hence dismissed and the petitioner therein has preferred C.R.P. No. 536 of 1123. The third












































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