TaxTMI 
TaxTMI 
2001 (5) TMI 953
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....esh order of attachment of the properties was made by the executing court and the properties were sold through court auction on 19.1 1.1977. The decree holder himself purchased the attached property for a sum of Rs. 5996.38. The properties were having an extent of about 5. acres'. The respondents herein filed a Miscellaneous Case on 19:11.1977 contending that they had purchased the disputed properties from the judgment debtor on 27.4.1974: According to the respondents, they had purchased these disputed properties under three registered sale deeds dated 27.4.1974 & 7.9.1974 for a total sum of Rs. 47,000, They had also alleged that prior to the sale deeds, there were two deeds of Baibeyana (Agreement to sell) dated 9.2.1974 and 16.2.1974 respectively. The respondents contended that there was no proper attachment of these properties arid the auction of the properties was held illegally and they prayed that the lands be released from attachment. The Miscellaneous case no. 28 of 1977 fifed by them was rejected by the Execution Court and aggrieved by the same, they filed Revision Petition No. 1208 of 1987 before the High Court, The respondents contended that the attachment before jud....
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....ollows :- "(1) Where an application is made that any person shall be arrested or that any property shall be attached under any provision of this Code not relating to the execution of decrees, and such person resides or such property is situate outside the local limits of the jurisdiction of the Court to which the application is made, the Court may, in its discretion, issue a warrant of arrest or make an order of attachment, and send to the District Court within the local limits of whose jurisdiction such person of property resides or is situate a copy of the warrant or order, together with the probable amount of the costs of the arrest or attachment. 2. The District Court shall, on receipt of such copy and amount, cause the arrest or attachment to be made by its own officers, or by a Court subordinate to itself, and shall inform the Court which issued or made such warrant or order of the arrest or attachment. 3. XXXX 4.XXXX" (Emphasis added) From the above provision, it is clear that for effecting attachment of property situated outside the local limits of a Civil Court, the mode prescribed is that the order of attachment shall be sent t....
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....iance with the provision in Section 101 can only amount to an irregularity. Sub-section 2 of Section 101 shows that when an order for attachment before judgment passed by a Court is sent to the District Court, the latter Court is bound to carry out the order itself or through a Court subordinate to it. The only function of the District Court to which the order of attachment is sent or of a Court subordinate to it which the District Court might sent it is only to carry out the order and complete the formalities of attachment, It other words, Section 101 prescribes the procedure, it does not touch the jurisdiction," In Mookan Ouseph Thamakutty v. Puramundekat Padinjare Madathil Nanu, AIR (1963) Kerala 193, a Single judge of the High Court followed Mariamma Mathew v. Ittoop Poulo, AIR (1952) Travancore Cochin 159 and held that Section 136 Civil Procedure Code prescribes only a procedure and does not confer jurisdiction on the Court, which effects the attachment. The non- compliance of that procedure being only a procedural defect, may be waived if no objection is taken and it does not invalidate the attachment itself. ln Bansropan Singh and Others v. Emperor, AIR (1937)....
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....as to be sent to the District Court within the local limits of whose jurisdiction the property is situate together with the probable amount of the costs of the attachment. On receipt of the order of attachment, the District Court may cause the attachment to be made by its own officers or by a Court subordinate to it. Primarily, therefore, jurisdiction to make an attachment on the authority of a precept received from an outside Court vests in the District Court. A Court subordinate to the District Court may attach the property in compliance with the order of attachment received but that would be possible only if the District Court requires it to do so. It is the District Court, which has jurisdiction to cause the attachment 'to- be made by its own officers or by a Court subordinate to itself. In the absence of a direction of the District Court to that effect, therefore, any attachment, which may be made by a subordinate Court in pursuance of a precept received from a Court in another district would be without jurisdiction and consequently void." the Counsel for the appellant: contended that the views taken by the Allahabad High Court and Patna High Court are not correct. In the ....
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....s held that the Court passing the order of attachment has got the power to raise the attachment. In that case, a warrant was issued under Section 136 of the Code by the Subordinate Judge, Kunoor to the District Court, Bellary in which a lorry was attached, and a claim was preferred before the District Judge and he made an order raising the attachment on the claimant furnishing security. The High Court held that the Court which could hear the claim was the Court which made the order of attachment and not the Court which actually effected the attachment. The order of attachment is sent to the District Court when the property is situate outside the jurisdiction of the issuing authority. It is only to maintain the comity of Courts as. in some cases, the attachment order mignt be issued by the Munsif 'Civil Judge (Junior Division) and the property to be attached might be within the jurisdiction of the Civil Judge (Senior Division)/ Subordinate Judge arid in the fitness of things. Section 136 lays down the procedure (hat under such circumstances, the order of attachment should be sent to the District Court which is having supervisory jurisdiction over all the subordinate Courts wi....