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Judgment
V.B. Raju, J.—In Civil Suit No. 77 of 1952 filed in the Court of Civil Judge, Senior Division, Surat, there was an attachment of a house and lands before judgment, and a decree was passed for Rs. 17,740/-.
In Civil Suit No. 19 of 1955, which was filed in the Court of Civil Judge, Junior Division, Bulsar, there was a consent decree for Rs. 3854/-on 5-10-55 and the decree also created a charge on the same property, namely the house and land. The decree was registered. In that suit, Darkhast was filed by the present petitioner, which was Dark-hast No. 84 of 1957 to execute the decree in Suit No. 19 of 1955, and the property which was under charge was sold and money realised.
On 18-4-56, opponent No. 1 filed a Datkhast in Suit No. 77 of 1952 for the, sale of the same property, and on 22-9-56 an attachment warrant was issued, and the property was ordered to be sold under Order 21, Rule 66, C. P. Code. Subsequently, in, 1958, opponent No. 1 gave an application to the Surat Court to call for the amount realised by the Bulsar Court by the sale of the property in execution of the decree in Suit No. 19 of 1955, and an order was passed calling for the money realised by the sale. An application by the petitioner to cancel that order was dismissed on 21-11-60. It is against that order that the present revision has been filed.
The lower Court purported to pass the order u/s 63, Civil Procedure Code, and it is contended that that section has no application. The learned counsel for the opponent No. 1 relies on Deekappa Malappa Hubli Vs. Chanbasappa Rachappa Neeli, and Ajudhia Pershad v. Sham Sunder AIR 1947 Lah 13 (FB), and also on the provisions of O. 21, R, 49, Civil Procedure Code. Section 63, CPC reads as follows:
"(1) Where property not in the custody of any Court is under attachment in execution of decrees of mote Courts than one, the Court which shall receive or realize such property and shall determine any claim thereto and any objection to the attachment thereof shall be the Court Of highest grade, or, where there is no difference in grade between such Courts, the Court under whose decree the property was first attached.
(2) Nothing in this section shall be deemed to invalidate any proceeding taken by a Court executing one of such decrees."
That section refers to cases where property is under attachment in execution of decrees of more Courts than one. But in this case on the date of the order the property was not under attachment of more Courts than one. In the Bulsar Court it : was already sold in execution of a decree which created a charge on the property. Therefore, Section 63 of the CPC has no application. However, the principle of Section 63 of the CPC has been applied in 27 Bom LR 917: Deekappa Malappa Hubli Vs. Chanbasappa Rachappa Neeli, , to cases where an attachment is levied against property and a decree passed against its owner by the Court of a higher grade but the property is sold by a Court of a lower grade in execution of a decree passed subsequently by it. The head note of that case reads as follows:
"Where an attachment is levied against a property and a decree passed against its owner by the Court of a higher grade, but the property is sold by the Court of a lower grade in execution of a decree passed subsequently by it, the former Court is entitled, under S. 63 of the Civil Procedure Code, to ask that the sale proceeds together with execution proceedings be transferred to itself, in order that the proceeds may be rateably distributed among the decree-holders who have qualified themselves under S. 73 of the Code."
The Bombay case applies the principles contained in Section 63, Civil Procedure Code, to cases where the property is already under attachment by the Court of a higher grade, but the property is sold by a Court of a lower grade, in execution of a decree passed subsequently by ''the Court'' of the lower grade,
It is true that in this case the decree in Suit No. 19 of 1956 was passed by a Court of lower grade but the property was not sold in execution of the decree by attachment. A Charge has been kept on the property and it was sold as property under charge. The distinction between the instant case and the Bombay case is that here a charge on the property was kept by one Court and in the other there was an attachment of the property. It is not clear whether the attention of the Court which created the charge was drawn to the fact that the property was already under attachment in Suit No. 77 of 1952. Although time for 15 days was given to the learned counsel for both sides, they are not able to enlighten the Court on this point However, that point will make no difference because if the charge was wrongly kept, the remedy was to have that change declared as illegal. But once there is a charge on the property, there is no provision in the CPC where the sale of the property charged and the realisation of the money by the Court is subject to the direction of another Court.
In AIR 1947 Lah 13 (FB), it was held that the charging order under O. 21, R. 49, C. P. Code is an attachment for purposes of Section 63, C. P. Code. Nothing in the record has been pointed out to me to show that the provisions of Order 21, Rule 49, C. P. Code are applicable to the facts of this case.
The revision is, therefore, allowed, and the order passed by the lower Court on 21-11-60 calling for the sale proceeds from the Court of Bulsar is set aside. The order of the lower Court passed, on 19-12-58 on Ex. 39 is also set aside. No order as to costs.