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Report No. 144

5.3.2. Question for consideration.-

The question has arisen whether the provision in section 136(1) to the effect that the warrant is to be sent through the District Court is mandatory (so that non-compliance with the provision will render the proceeding void) or whether it is discretionary (so that the non-compliance is regarded as a mere irregularity).

5.3.3. Some High Courts lake the first view and according to them-

(1) an order addressed to a Court except through the District Court, would be a nullity;

(2) the attachment effected in pursuance of such an order may be ignored as void; and

(3) if the property so attached is actually sold, the sale can be set aside on proof of substantial injury to the appellant. This view is taken by the following High Courts:

(a) Allahabad,1

(b) Mysore,2

(c) Patna,3 and

(d) Punjab.4

1. Rahim Bux and Sons v. Firm Samiulla & Sons, AIR 1963 All 320 (see infra).

2. S.A. Patil v. P.K. Rajput, AIR 1973 Mys 82 (84, 85), para. 6 (Malimath, J.).

3. Bansropan v. Emperor, AIR 1937 Pat 603 (605) (James & Madan, JJ.).

4. Bhagwan Das v. Santokh Singh, AIR 1968 P&H 461: 70 Punj LR 467.

5.3.4. In the Allahabad case, the question was whether attachment of property by the Civil Judge, Lucknow, on the authority of a precept received by him from Kanpur, was valid. The Division Bench of the Allahabad High Court held1 the attachment to be invalid. As the matter is discussed at some length in the judgment, it will be useful to quote paragraphs 17 and 17A of the judgment, which are as under:

"17. It appears to us that the provisions of section 136 are quite explicit, and even though it may, to some extent, be said that the section lays down procedure for attachment of property outside the jurisdiction of the Court ordering the same, it also prescribes jurisdiction for attachment of property in such cases. The very fact that the order of attachment has to be sent to some other Court indicates that the Court ordering the attachment has no jurisdiction to cause the attachment being made outside its own territorial jurisdiction. In older, therefore, that attachment be made, two conditions must be satisfied, namely:-

(1) The property must lie within the territorial jurisdiction of the Court causing the attachment to be made.

(2) The Court to ordering the attachment must be seized of the matter.

17A. The Court ordering attachment before judgment is seized of the matter, but the property does not lie within its jurisdiction. If the order of attachment is sent to a Court other than the District Court, the property required to be attached may lie within the jurisdiction of that Court but that Court cannot be seized of the matter unless the proceedings for attachment a re properly before it. Sub-sections (1) and (2) of section 136, therefore, prescribe not only the manner in which the attachment shall be made but also jurisdiction for making the attachment.

On receipt of the order of attachment, the District Court is seized of the matter and the property is also within its jurisdiction and attachment can, therefore, be made by it. Sub-section (2), however, prescribes that the District Court may cause the attachment to be made by its own officers or by a Court subordinate to itself. If the District Court exercises the option to get the attachment made by a Court subordinate to itself, it will be only then that the Court will be seized of the matter and since the property also lies within its jurisdiction, it will be able to get it attached."

1. Rahim Bux & Sons v. Firm Samiulla and Sons, AIR 1963 All 320 (325), para. 17 to (M.C. Desai, C.J. & S.D. Singh, J.).

5.3.5. The difficulty created by section 136 and its proper rationale have been dealt with by High Court of Mysore.1 The following quotation from para. 9 of the judgment is of some help:-

"The consensus of judicial opinion in India in behalf appears to be in consonance with the view which I have taken, as can be seen from the decisions of the various High Courts namely AIR 1968 P&H 461 (Bhagwan Das Pribhdas v. Santokh Singh Saran Singh); AIR 1963 All 320 (Haji Rahim Bux & Sons v. Firm Samiullah and Sons); AIR 1051 MB 82 (Rameshwaradhyal Ramswaroop v. Bheemsen Dulcuand) and AIR 1937 Pat 603 (Bansropan Singh v. Emperor). Sri Chattre, the learned counsel for respondent No. 1 has pressed into service the decision of the High Court of Travancore-Cochin in AIR 1952 Tray-Co 159 (FB) between Mariamma Mathew v. Ittop Poulo and the decision of the Kerala High Court in AIR 1963 Ker 193 between Mookan Ouseph Thomakutty v. Puramundekat Pandinjare Madathil Nanu which followed the earlier decision of the Travancore-Cochin High Court.

The view taken by the High Court of Travancore-Cochin as well as the Kerala High Court in the aforesaid two decisions is that the giving effect to the order of attachment is only a procedural matter and that therefore section 136 of the Code of Civil Procedure should not be regarded as a provision conferring jurisdiction on another Court in giving effect to the order of attachment.

I have already discussed the relevant provisions of the Code of Civil Procedure and recorded my reasons to show that section 136 of the Code of Civil Procedure is one which provided for conferring jurisdiction on Court to give effect to the order of attachment made by another Court, which jurisdiction it does not otherwise possess. With great respect I find myself unable to agree with the view taken in those two decisions that section 136 of the Code of Civil Procedure deals only with the procedural aspect and that any irregularity in following the same does not vitiate the attachment made."

1. S.A. Patil v. P.K. Rajput, AIR 1976 Mys 82 (85, 86), para. 86.

5.3.6. The point was considered at tome length by the High Court of Patna in a Division Bench ruling1 though it was a criminal case, the question related to interpretation of section 136 of the Code of Civil Procedure, the question being whether a person who escaped from the custody of court peon who had arrested him on a defective warrant could be convicted under section 148 of Indian Penal Code.

In this case, the warrant was not sent to the District Court but was endorsed directly to the Munsif and it ultimately found its way to the District Judge who ordered it for execution. The argument was that the District Judge has no power thus to execute a warrant which was not properly addressed to him under section 136. The Advocate-General conceded that in this case the warrant was defective and could not be defended as a good warrant. The High Court made the following observations:-

"It appears to us that when a Court exercises the extraordinary powers conferred by section 136, C.P.C. the provisions of that section must be strictly observed, and warrant must be endorsed to the District Court outside the jurisdiction of the issuing court, in which the warrant is to be executed. The warrant against Ramraj Singh was, therefore, defective and Mr. Sri Narain Sahay argues that as that was the warrant which was actually executed which led to the rescue. Ramraj Singh cannot be treated as having been in lawful custody and no offence was therefor committed under section 225B of the Code by anybody concerned.

If the matter ended there, the petitioners who have been convicted of the offence of rescuing or escaping from lawful custody and of rioting with the common object of effecting the rescue or escape would apparently be entitled to acquittal on those charges, although this defect in the form of the warrant was manifestly not known to them at the time."

1. Bansropan Singh V. Emperior, AIR 1937 Pat 60 (605) (James and Madan, JJ.).

5.3.7. But, as the learned Advocate-General points out, "the petitioners have been convicted not merely for the rescue of Ramraj Singh but for that of Bansropan Singh also. Bansropan Singh was actually under arrest for the reason that he had wounded a constable, and had committed in the presence of the two constables, an offence punishable under section 324, I.P.C., for which, the police officers had powers to arrest him under Clause 1 of section 54, Criminal Procedure Code, so that he was in lawful custody and the persons rescuing him actually committed the offence punishable under section 225 of the Code.

If he is regarded as having been in custody in execution of the warrant issued under Order 38, rule 1, Civil Procedure Code, the persons concerned in the rescue were quality of the offence punishable under section 225B of the Code, since there was no defect in the warrant against Bansropan, so that in any view of the matter the persons resisting the arrest of Bansropan and rescuing him from custody were rightly convicted. Ramraj Singh merely escaped from the custody of the peon who had arrested him on a warrant which was defective. So far as he is concerned, the finding and sentences of the trial Court must be set aside, and he must be acquitted and discharged from his bail".

5.3.8. In contrast, the following High Courts take the view that such non-compliance is a mere irregularity, which will not vitiate the proceedings:

(i) Andhra Pradesh;1 and

(ii) Kerala.2

1. Pollumal v. S.C. Negoji Rao, (1975) 2 AP 14 143 cited by A.N. Shah Code of Civil Procedure, (1989), p. 1352, footnote 15.

2. Mookan Ouseph v. Paramundekat, AIR 1963 Ker 193.

5.3.9. Interpreting section 101 of the Tranvancore Civil Procedure Code (corresponding to section 136) a Full Bench of the Travancore-Cochin High Court1 took the view that the aforesaid section prescribed a mere matter of procedure, and sending the warrant, not to the district court but to a subordinate court in another district is only an irregularity which does not affect the jurisdiction of the court. The Travancore-Cochin High Court put forth the reasoning that when an order of attachment is sent to the district court, the district court has no discretion of its own to refuse execution. It is bound to carry out the order itself, or to get it executed through a subordinate court. But, in the Allahabad case2 of 1963, this reasoning has been criticised in the following words:-

"It is certainly true that the District Court, to which the order of attachment is sent, has no discretion in the matter and has to carry out the order of the Court issuing the order of attachment, but that does not necessarily mean that the provision made for the order of attachment being sent to the Court is a mere matter to procedure.

The very fact that the Court ordering the attachment cannot itself issue a warrant and send it direct to the nazir for execution, indicates that a question of jurisdiction is involved in it. With respect, therefore we are unable to follow the view taken by the Full Bench in AIR 1952 Tray-Co. 150 (supra) and hold that the Civil Judge at Lucknow had no jurisdiction to attach the properly and the attachment was consequently invalid. The effect would be as if attachment had not been made at all."

1. Mariamma Mathews v. Ittop, AIR 1952 Travncore-Cochin 159 (FB.)

2. Rahim Bux and Sons v. Firm Samiulla and Sons, AIR 1963 All 320.

5.3.10. It is desirable that the position in this regard should be clarified. Adoption of the view that the non-compliance is a mere irregularity, would, at the first sight, appear attractive, because the question may be raised why a procedural irregularity should invalidate the act of a court, particularly in execution.

5.3.11. However, as mentioned above, many of the High Courts have pointed out that section 136 really creates a jurisdiction where there would otherwise be none. If the section had not been there, then the following consequences would have ensued:-

(a) The court issuing the order contemplated by section 136 (i.e., arrest or attachment of a person or thing outside its jurisdiction) would have been incompetent in the matter, because, in general, a court can only deal with matters within its local jurisdiction;

(b) The court within whose jurisdiction the person or thing actually is, would have (but for the section), no competence, because a court, in general, in concerned only with the execution of its own processes.

5.3.12. It is this vacuum that is sought to be filled in by section 136. Its terms must, therefore, be strictly complied with.

5.3.13. There is another aspect to the matter. Section 136 does not itself give jurisdiction to a subordinate court in a direct manner. What it contemplates is that the district court will issue the warrant of arrest or order of attachment or it will cause it to be done by a subordinate court. Further, as provided by section 136(2), it "shall inform the court which,issued or made such warrant or order of arrest or attachment." Thus, there is an element of centralised authority in the District Court. It seems, therefore, to be a logical view to take that any other mode of proceeding is not contemplated by the section as a valid procedure.

Conflicting Judicial Decisions pertaining to the Code of Civil Procedure Back

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