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ALLAHABAD HIGH COURT
M. C. Desai, CJ, S. D. Singh, J
Haji Rahim Bux and Sons v. Firm Samiullah
Headnote: Read headnote
1. The appellants in both the appeals are judgment - debtors in decree No. 59 of 1958 of the Court of Civil Judge, Kanpur, which was passed ex parte on 19th May, 1958, and the respondents are the Firm Haji Sanaullah and sons, who are decree - holders in the aforesaid decree.
2. While the suit was still pending, the respondents moved an application for attachment before judgment under Order XXXVIII , R.5 of the Code or Civil Procedure, (to be referred to hereafter as the Code). The property sought to be attached was, however, situated at Lucknow and the order for attachment of the property was, therefore, sent to Lucknow under sub-section (1) of S.136 of the Code. This sub-section (1) of S.136, however, requires that the order of attachment shall be sent to the District Court within the local limits of whose jurisdiction the property is situate and under sub-section (2) of the same section it is open to the District Court to have the attachment made by its own officers or by a Court subordinate to itself. What the Civil Judge at Kanpur. however, did was that the order of
Attachment must comply with jurisdictional rules; absence qualifies as an irregularity, not an automatic nullity unless substantial injury is proven.
The court established that non-compliance with procedural requirements for attachment before judgment renders the attachment ineffective, impacting the validity of subsequent sales, including court a....
A claim under Order 38 Rule 10 of C.P.C is maintainable after the suit is decreed, and the attachment before judgment continues after the decree, adjudicable under Order 21 Rule 58 of C.P.C.
The main legal point established in the judgment is that the claim petition under Order XXI Rule 58 of the Code cannot be entertained if it is made with the ulterior motive of defeating a decree obta....
(1) Attachment before judgment cannot extend to properties which have already been alienated prior to institution of suit – Attachment before judgment cannot override a prior completed transfer.
(....
A decree established in a suit under Order XXI does not automatically nullify an execution sale where necessary parties are not included, reaffirming the principles of execution law.
The court emphasized that attachment before judgment requires credible evidence of intent to obstruct execution, and failure to consider relevant documents constitutes a jurisdictional error.
A transfer made with knowledge of an attachment before judgment can be contested as fraudulent under Section 53 of the Transfer of Property Act.
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