Mansoor Ali vs Azizul Rahman

S.B. Sinha, J.—These civil revision applications involving common questions of fact and law, were taken up for hearing together and are being disposed of by this common judgment.

The facts of the case lie in a very narrow compass.

The petitioner filed a Money suit bearing Money Suit No.264/73 against Hatim Mian where for the petitioner obtained an order of attachment before judgment in respect of 1 Bigha 8 Kathas and 9 dhurs of land belonging to the aforementioned Hatim Main.

After obtaining the decree in the aforementioned Money Suit No.265/73 an execution thereof was levied resulting in institution of an Execution case bearing Execution Case No.59 of 1975.

In the aforementioned Execution case the opposite parties who were the applicants before the learned trial Court filed three applications under Order XXI Rule 58 C.P.C. inter alia contending therein that they had interest in the property attached by this Court. They also submitted that the order of attachment before judgment was illegal, inter alia on the ground as no notice under Order XXI, Rule 54 C.P.C. was served upon the defendant. The said applications gave rise to Miscellaneous cases which were registered as Misc. Case No.9/76,82/76 and 1/77. By reason of a judgment dated 10.5.1980 the learned Munsif allowed the three applications holding inter alia therein that the writ of attachment before judgment issued in the suit was not in the prescribed form. In other words, the learned Munsif held that the writ of attachment issued did not contain any injunction upon the judgment debtor prohibiting him from transferring the property in question. The petitioner preferred three different appeals before the learned District Judge, who by a common judgment dated 27th April, 1985 dismissed the said appeals.

Mr. M.P. Bhartee, the learned counsel appearing on behalf of the petitioner submitted that the learned Court below committed an illegality in passing the impugned judgment in so far as they failed to take into consideration that in the instant case the defendant-judgment debtor, did not consent the applications for attachment before judgment. In my opinion, this does not alter the position in law.

In Tapeshwer Missir v. Santosh Singh, reported in 1969 BLJR 128 it has been held by a Full Bench of this Court that in order to make an effective order of attachment before judgment, the defendant must be served with a notice in the prescribed form, as contemplated under Order XXI Rule 54 C.P.C. whereby the defendant must be prohibited from transferring the property.

As mentioned hereinabove, the learned Court below found that such a notice was not served upon the judgment debtor only as such the judgment debtor did not commit any illegality in transferring the property, in question, to the opposite parties by three different sale deeds. In my opinion, this case is fully covered by the aforementioned Full Bench decision.

In this view of the matter I did not find any merit in these applications which are accordingly dismissed. However, on the facts and the circumstances of the case there will be no order as to costs.