Essential conditions for valid attachment

To effect an attachment of immovable property it is necessary (1) to pass an order prohibiting the judgment-debtor from transferring or charging the property in any way, and (2) to have that order proclaimed by beat of tom-tom near the property, and to have copies of the prohibitory order affixed on a conspicuous part of the property, on a conspicuous part of the Court-house, and also, in such cases as this, in the office of the Collector of the District. The prohibitory order must be passed by the Court; it is not enough for the Court to say 'attach' nor am I prepared to assume, as learned Counsel for the respondent wishes me to do, that since the District Munsif said 'attach' and the Amin reported 'I have attached' therefore everything needful to effect a valid attachment must have been done.

Reported in : AIR1939Mad793; (1939)2MLJ375

Decided On : Apr-28-1939

Appellant : Noor Mahomed Mohideen Pillai Taragan and Anr.

Respondent : Pechi Ammal

Excerpt: The Amin's evidence is unreliable and also inconclusive, for at one moment he says that he affixed a copy of 'the warrant' (that is, the warrant in Form 5 of Appendix F) and at another moment he says he affixed a prohibitory order in Form 24 of Appendix E.

Burn, J.

1. I must refuse to allow the appellants to raise at this stage the contention that the District Munsif had no jurisdiction to attach because of some infirmity in the notice issued on 17th February, 1932. That plea has never yet been advanced and it is too late to advance it now.

2. The other question is whether any attachment was in fact validly effected on 1st March, 1932. From the learned District Munsif's judgment it does not appear that this question was discussed before him. But it was discussed before the learned Subordinate Judge and it is important. Ex. A does not purport to be an order for the attachment of anything. It is apparently part of Form 5, Appendix F of the Code of Civil Procedure, translated into Tamil. Attachment of immovable property can only be made by means of prohibitory orders of which Form 24, Appendix E of the Code of Civil Procedure is a specimen. Were any such prohibitory orders ever issued in this case? The learned Subordinate Judge says they were, but that was only what he presumed. The learned advocate for appellants says they were not: the learned advocate for respondent says they were. This was a matter of evidence and not for mere presumption.

3. A finding will be called for from the Court of the District Munsif of Tenkasi on the question 'Was the attachment said to have been effected on 1st March, 1932, made by means of prohibitory orders (Order 21, Rule 54 of the Code of Civil Procedure)?'.

4. Evidence may be adduced by both sides. Time for submission of finding is six weeks from the date of receipt of this order. Time for filing of objections will be 10 days.

5. In pursuance of the directions contained in the above order the District Munsif of Tenkasi submitted the following findings:

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6. These appeals coming on for final hearing after the return of the finding of the District Munsif of Tenkasi upon the issues referred by this Court for trial on Friday, the 21st day of April, 1939, and the case having stood over for consideration, The Court delivered the following

1. That the attachment made by the Amin on the 1st of March was invalid is I think quite clear. There was no order passed by the District Munsif under Order 21, Rule 54. If any such order had been passed it would have been in the records of the Court. The Amin's evidence is unreliable and also inconclusive, for at one moment he says that he affixed a copy of 'the warrant' (that is, the warrant in Form 5 of Appendix F) and at another moment he says he affixed a prohibitory order in Form 24 of Appendix E. Moreover, the actual warrant issued to the Amin did not authorize him to attach anything. To effect an attachment of immovable property it is necessary (1) to pass an order prohibiting the judgment-debtor from transferring or charging the property in any way, and (2) to have that order proclaimed by beat of tom-tom near the property, and to have copies of the prohibitory order affixed on a conspicuous part of the property, on a conspicuous part of the Court-house, and also, in such cases as this, in the office of the Collector of the District. The prohibitory order must be passed by the Court; it is not enough for the Court to say 'attach' nor am I prepared to assume, as learned Counsel for the respondent wishes me to do, that since the District Munsif said 'attach' and the Amin reported 'I have attached' therefore everything needful to effect a valid attachment must have been done. That would be to assume the very point in dispute.

2. These appeals are accordingly allowed with costs throughout but Vakil's fee in one only A.A.A.O. No. 36. The orders of the lower Courts are set aside, and the appellants' claims allowed.

3. Leave asked for, and refused.