TMI Blog1944 (8) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... , Nimar Sub-Division, in terms of O.21, R. 46 (1), Civil P. C. whereby he was asked to withhold the payment to Amiruddin due to him for his work to the extent of Rs. 600 until further orders of the Court, The Assistant Engineer's endorsement is in the following terms: Received two notices. The amount available in this Department will be withheld. Please intimate early. 2. Subsequently a decree was passed in Rajasingh's favour and the Court called upon the Assistant Engineer to deposit the amount attached. But it was countered with the answer: Returned with the information that no dues of contractor Amiruddin are outstanding in this Office. The debt, which was attached, was ordered to be sold in execution and Dhiansingh, the Plaintiff in the suit out of which this appeal arises, purchased the decree-holder Rajasingh's right in respect of the debt, for Rs. 65. Dhiansingh impleaded in his suit the Secretary of State for India in Council and Mr. P. B. Dass who was the Assistant Engineer, Nimar Sub-Division, at all material times. The suit was resisted on the ground that the attachment of the debt due by the Public Works Department to Amiruddin was invalid in conseque ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n attachment made without due compliance with the provisions of Order 38, R. 5, Civil P. C., was illegal and ultra vires. He relied on the previous decision of that Court in A. I. R. 1914 ALL 511.('14) 1 A.I.R. 1914 All. 511: 23 I.C. 107, Nathu Mal v. Kishori Lal But relying on the same case, a Bench of two Judges of the same High Court in A.I.R. 1934 ALL. 456 ('34) 21 : A. I. R. 1934 All. 456: 148 I. C. 509, Prag Nath v. Mt. Indra Devi pronounced that such non-compliance with the provisions of the rule amounted to an irregularity but that it did not render the attachment wholly ultra vires or void ab initio. In A.I.R. 1936 ALL. 408 ('36) 23 : A. I. R. 1936 All. 409 : 58 All. 884 : 163 I. C. 236, Shyam Lal v. Bahal Rai and A.I.R. 1936 Lah. 33 ('36) 23 : A. I. R. 1936 Lah. 33, Madan Theatres Ltd. v. Hari Das the question came up in appeal from the irregular order of attachment passed by the trial Court and the question was not considered in either case in the form in which it arises in the present case. In 18 Lah. 756 ('38) 25 A. I. R. 1938 Lah. 49 : I.L.R. (1937) 18 Lah. 756: 175 I.C. 828, Dvarka Das Badri Das v. Siri Ram the facts were similar to those in A.I.R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 779, Nareshchandra Mitra v. Molla Ataul Huq Rule 5 of Order 38, Civil P. C., is intended for the protection of the person whose property is sought to be attached before judgment. If he did not receive notice required by law and was consequently denied the privilege of staving off the attachment by the offer of security the injury would no doubt accrue to him but the law gives him a remedy by way of appeal under O.43, R. 1 (q) from such an irregular order to get it set aside. The person affected in this case did not care to take recourse to that remedy and acquiesced in that order. In A. I. R. 1928 P. C. 162 ('28) 15 A.I.R. 1928 P. C. 162: 3 Luck 314: 55 I. A. 227: 109 I. C. 417 (P. C), Jang Bahadur v. Bank of Upper India Ltd their Lordships pointed out the difference between a matter of procedure and one of jurisdiction in these words: This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject-matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is noncompliance with such procedure the defect might be waived, and the party who has acquiesced in the Court exercising it in a wrong way ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... law by the party prejudicially affected by it. An irregular attachment would thus amount to a voidable act, but in no case would it be a nullity. The fact that the omission to attach property is not regarded as invalidating the sale held in execution itself shows that the attachment is only a matter of procedure. The object of attachment, as was pointed out by their Lordships of the Privy Council in 25 cal. 179,('98) 25 Cal. 179: 24 I. A. 170: 7 Sar. 222 (P. C.), Moti Lal v. Karrabuddin is only to prevent alienation; it does not create any security, charge or lien in favour of the attaching creditor over the property attached but only prevents and avoids private alienation by the owner of the property. If that is the object of attachment that was substantially served in the present case by a notice served on the garnishee pro-habiting him from paying the money due by him to the judgment-debtor, the attachment of the debt must be deemed to have been sufficiently effected by the notice to the debtor and the omission to give notice to the creditor, viz., the judgment-debtor in the suit, was merely an error of procedure. The failure to comply with R. 5 of Order 38, Civil P. C., cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... were as follows: The date of the summons is plainly 30th January; it is equally plain that it ought not to have been dated 30th January. What is the effect of this ? Is it a circumstance which deprived the West London County Court of all jurisdiction or is it merely an irregularity which has occurred in a matter within the general jurisdiction of that Court and which therefore can be waived by the Defendant taking no objection and proceeding as if it had not occurred ? In my opinion it was an irregularity of the kind which could be waived, and in the circumstances it was waived by the Respondent. In (1889) 23 Q. B. D. 395 : (1889) 23 Q. B. D. 395, Fry v. Moore Lindley L. J. said: it is difficult to draw the exact line between an irregularity and a nullity ..... But I think that in general one can easily see on which side of the line the particular case falls, quoted by Younger L. J. in (1921) 2 K. B. 66 : (1921) 2 K. B. 66, Smythe v. Wilesat p. 90. Reverting to the case in hand, we may well ask the question to ourselves: on which side of the line between nullity and irregularity does this case fall ? In view of the foregoing discussion there should be no difficulty in de ..... X X X X Extracts X X X X X X X X Extracts X X X X
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