Attachment before judgment - continued. equitable that property under the control of the Court should be applied for the benefit of all the creditors, than for the exclusive advantage of one. SAVA RAMJI v. JADHAVJI NATHU; EXPARTE GAMBLE, OFFICIAL ASSIGNEE, 2 B.H.C. 142. [R., 8 B.H.C. O.C. 140, 16 B. 1.]

(4)-Civ. Pro. Code, s. 89--Effect.-S. 89, Civ. Pro. Code renders an attachment before judgment ineffectual as a bar to process of execution against the property attached in satisfaction of a decree in another suit, whether obtained before or after the attachment. ANONYMOUS, 6 M.H.C. 135.

(5)-Sale of property-Whether further process required. If there are no conflicting attachments, a sale of property under a decree may legally follow without further process on attachment previously to decree. M. S. MUSTAN SAIB V. BENJAMIN BROOKS, 7 M.H.C. 347.

(6) Civ. Pro. Code, O. XXXVIII, r. 10 (= s. 489, Civ. Pro. Code, 1882) Attachment after judgment necessary. The law requires that attachment after judgment should issue although a plaintiff may have already obtained attachment before judgment. MUSSUMMAT SATBHAWAN v. SAHOO BANARSEE Doss, 2 N.W.P 365.

Held

(7)-Priority-Civ. Pro. Code, 1859, s. 81.N.S, and subsequently J S, filed plaints and obtained attachment orders against J P's property. J S, who got a decree on the 13th and an order for sale on the 16th of February, claimed priority. Claim disallowed. that, of several creditors who have attached a debtor's property under s. 81 of Act VIII of 1859, the one who first obtains judgment is entitled to priority. JUGGURNAUTH SHAW v. ISSURCHUNDER ROY, Bourke O.C. 146; LUTCHMEEPUT DOGAREE v. KENARAM SEN, 1 Ind. Jur. N.S. 393 Bourke O.C. 92.

Suit

(8)-Attachment before judgment against member of a joint Hindu family-Death of defendant before decree-Right of survivorship. In a suit against a member of a joint Hindu family, not in his capacity as manager or representative, an attachment before judgment of family property was obtained. The defend. ant died before decree. Consequently, the right of survivorship took effect before the attachment became effectual for the purpose of execution.

RAMANAYYA v. RANGAPPAYYA, 17 M. 144. (8 M. 554, F.) [R., 16 C P.L.R. 19; D., 26 M. 604.]

(9)-Suit on hypothecatian-bond-Attachment before judgment of property other than hypotheca -Sale of hypotheca not necessary to prove insufficiency-Civ. Pro. Code, 1882, s. 483.-Where before the decree in a suit upon a bypothecation-bond, the plaintiff applied under s. 483 of the Civ. Pro. Code, for an order of attachment of certain immoveable property belonging to the defendant but not hypothecated under the bond, it was held that, though the Court should act with extreme caution in ordering attachment of non-hypothecated property, and should be thoroughly satisfied, before

Attachment before judgment-continued. making such an order under s. 483 of the Code, that the hypothecated property would be insufficient to discharge the debt, it would not be necessary for the purpose, that the sale of the hypotheca should have actually taken place. BESHAMBAR SAHAI v. SUKH DEVI, 16 A. 186 A.W.N. 1894, 20.

(10)-Execution of decree - Money deposited in Court, attachment of -Civ. Pro. Code, ss. 483, 484, 486-" Property," meaning of.-S. 272 of the Civ. Pro. Code, which, by reason of the provisions of s. 486, applies to the attachment of property deposited in a Court, directs that the attachment shall be made by a notice to such Court requesting that such property may be held subject to the further order of the Court which ordered the attachment. Where, however, the property ordered to be attached is deposited In the Court which made the order for attachment, that order is itself sufficient notice that the property ordered to be attached is to be held subject to the further orders of the Court, and it is not necessary that a separate formal notice should be drawn up. The word 'property" as used in ss. 483, 484, is wide enough to include property of every description moveable or immoveable, whether in the actual possession of the defendant or in the possession of some other person on his behalf, and the words in s. 484 as to the Court requiring the property sought to be attached to be produced and placed at its disposal, refer only to such property as is capable of being produced in Court. CHEDI LAL v. KUARJI DICHIT, 17 A. 82 A.W.N. 1895, 14.

(11)-Company in liquidation, not made party to suit against defendant as Company's manager-Property of Company attached before judgment-Application of liquidator to raise attachment dismissed-Reversal of order of attachment on appeal.-Plaintiff, respondent, instituted this suit against the defendant in his own individual capacity and as manager of the Company of which applicant was the liquidator. Though plaintiff's claim was professedly against the Company, he did not make the Company, which was then in liquidation, a party to the suit. On plaintiff's application under s. 483 of the Civ. Pro. Code, to attach before judgment the Company's factory, the lower Court, though the Company was no party to the suit, issued notice to the defendants under s. 484 and conditionally attached the Company's factory until further order. No notice of the application or of the order of attachment made upon it was given to the liquidator of the Company, who, under s. 177 of the Companies Act, was engaged in winding up its affairs and was charged with the duty of distributing its assets The liquidator, however, applied to raise the attachment, and the lower Court made the Company a party to the suit, disallowed his objections, and confirmed its previous attachment order. On the Company through its liquidator appealing to the High Court from this order confirming the attachment, it was objected that no appeal lay,

Attachment before judgment—continued.

as the liquidator's remedy was by suit under ss. 283 and 487 of the Code; it was held that, though the above objection may hold good if the Company were not a party to the suit, yet, the Court having made it a party, the Court's order amounted to one made against the Company under s. 485, so that an appeal would lie from it under s. 588 of the Code. MIR ALI V. BIHARI LAL, 21 B. 273.

(12)-Attachment, effect of-Necessity of subsequent attachment-Civ. Pro. Code, 1859, s. 89.-RR filed a plaint against IR on the 15th, and obtained a decree on the 27th of February and a prohibitory order was made against I R's property on the 18th of March, subject to three prior attachments; one by J S, whose plaint was filed on the 30th of January, and who obtained a prohibitory order on the 13th and a decree on the 16th of February; a second by N S, who filed his plaint and obtained a prohibitory order on the 30th of January, and obtained a decree on February 22nd; and a third by KS, who also filed his plaint and got a prohibitory order on January 30th, and a decree on February 28th for an order for the sale of the goods on notice to the other three plaintiffs; and the Court ruled that N S and KS were entitled to priority over R R. Held that the process in attachment before judgment is in all respects the same as in cases of attach. ment after judgment, and the effect in binding the property attached, so as to prevent alienation, is the same. That an attachment, wbether before or after judgment, places the property in the custody of the law. That if the property have been attached before judgment, there is no need of a second attachment in the same suit after judgment. That the words

attachment before judgment" in s. 89 of Act VIII of 1859 must be read as equivalent to "attachments in pending suits," or, in other words, the phrase "before judgment" must be read as meaning "until after judgment." RAJCHUNDER ROY v. ISSURCHUNDER ROY, Bourke O.C. 139.

(13)-Attachment before judgment-Power of High Court to attach property out of ordinary original civil jurisdiction.-The High Court has no power to attach before judgment a defendant's property situate outside the limits of its ordinary original civil jurisdiction. HAJI JIVA NUR MUHAMMAD v. ABUBAKAR IBRAHIM MEMON, 8 B.H.C. O.C. 29.

-

(14)-Ss. 483 to 490, Civ. Pro. Code, 1882 Private alienation of property attached before judgment during attachment--Effect of attach ment whether before or after decree.-- When property is ordered to be attached before judgment, a private alienation of the property so attached during the continuation of the attachment void as against all claims enforceable under attachment. The effect of an attachment, whether it be before or after decree is the same, provided that in the former case, a decree is made for the plaintiff, at whose

Attachment before judgment-continued. instance the attachment takes place. GANU SINGH V. JANGI LAL, 26 C. 531. (Bourke O.C. 139, R.)

(15-Execution of decree in presidency town -Act XXIII of 1840.-It is competent to the High Court under Act XXIII of 1840, to order a warrant of attachment before judgment issued by a Mofussil Court to be executed within the limits of the High Court's ordinary original civil jurisdiction. In re R. J. ABRAHAM, 6 B. H.C. A.C. 170. [Not F., 8 B.L.R. 335; Cons., 8 B.H.C. O.C. 29.]

(16)-Grounds of application-Suit not commenced Civ. Pro. Code, 1859, s. 81.-In an application made under s. 81, Act VIII of 1859, the Court must be satisfied that a removal of goods is being made, or about to be made, with a view to evade the execution of a decree in a specific suit, though it is not necessary that the suit should be actually commenced at the time of their removal. RAMNARAIN PODDAR v. LEVY, 2 Hyde 183.

(17)-Attachment before judgment-Property within jurisdiction. -The words any portion of his property" in the latter part of s. 483, Civ. Pro. Code, Act X of 1877, mean any portion of the property of the defendant which is within the jurisdiction of the Court in which the suit is pending. KEDAR NATH DUTT v. SEEVA VEYANA RANA LUCHMUN CHETTY, 1 C L.R. 336. [R., 5 Bom. L R. 570.]

(18)-Civ. Pro. Code, ss. 483 and 484Attachment before judgment-Property not within jurisdiction.-Under the provisions of ss, 483 and 484, Civ. Pro. Code, a Court cannot attach before judgment, property not situated within its jurisdiction. KRISHNASAMI v. ENGEL, 8 M. 20. [F., 5 Bom. L.R. 570, 3 L.B.R. 255; R., 1 L.B.R. 310.]

(19)-Civ. Pro. Code, 1877, s. 484 (=0. XXXVIII, r. 5, new Code)-Attachment-Security" Conditional attachment," meaning of.The defendants were, on 10th March, 1881, called on to furnish security for the fulfilment of a decree that the plaintiff might obtain against them, or to show cause on the 28th March, 1881, why the security should not be furnished. To this direction, the order was appended, which is provided by the form at the end of the Code for a provisional attachment. The defendants, to avoid the attachment, gave security on the 12th March, 1881, for satisfaction of the decree, and the attachment was not carried out. On the 28th March, 1881, they showed cause why security should not be furnished but the Subordinate Judge, as security had been furnished thought the matter was at an end, and that he could not cancel the security bond. Held by the High Court that the Sub-Judge was not right; that the security given under such circumstances wis not the security expressly provided under s. 484 of the Civ. Pro. Code, and did not preclude the defendants from showing cause why no security should be furnished, because the continuance

Attachment before judgment-continued. of the order beyond the 28th March 1881, was subject to the revision of the Sub-Judge on that day, so too should the continuance of the security given in substitution for attachment. S. 484 of the Civ. Pro. Code, 1877, speaks of a "conditional attachment as within the competence of the Court. This might mean an attachment to be made conditionally on the security not being furnished nor cause shown by the prescribed day, or it might mean an immediate attachment of a provisional kind conditioned to become plenary if security should not be furnished, or cause shown according to the terms of the order. The form at the end of the Code for a provisional attachment shows that the latter was the intention of the Legislature. LOTLIKAR v. LOTLIKAR, 5 B. 643.

(20)-Grounds for granting applicationDefendant leaving jurisdiction to avoid or delay process-Civ. Pro. Code, 1859, ss. 74, 75.Applications under ss. 74 and 75, Act VIII of 1859, on the ground first mentioned in s. 74, must show at least that defendant is about to leave the jurisdiction, with a view to avoid process, or to delay the plaintiff in the prosecution of his suit. Evidence sufficient to support this must be adduced in all cases. TEENARAM v. RAMBUTTON, 2 Hyde 181.

(21)-Malicious arrest before judgment Remedy.-When a person thinks himself aggrieved by a malicious arrest on mesne process, or malicious attachment of property prior to decree, he is not compelled to apply for redress under the provision of s. 88 of the Civ. Pro. Code. If he choses, he may institute a suit for compensation without having recourse to that special provision of law. To maintain such a suit, legal not actual malice should be proved. A creditor is not entitled, merely because he has a just demand against his debtor, to move the Courts to put in force the extraordinary process of arrest or attachment on mesne process; he must also have good reason to believe that his debtor is about to depart from the jurisdiction of the Court, or to deal with his property in such a manner that it will be unavailable for the satisfaction of the claim against him.

GOUTIERE v. EMILE ROBERT JOSEPH CHARRIOL, 1 N.W.P. 91. [R., 2 N.W.P. 353.]

(22)-Defendant leaving India-Good cause -Civ. Pro. Code, 1859, ss. 74, 80.-When it appears prima facie that the defendant is going to leave India with intent to remain absent so long that the plaintiff will or may be obstructed or delayed in the execution of any decree that may be passed against the defendant, he will be ordered, unless he show good cause to find security for the amount of the claim and the costs of the suit. And "good cause must be either that he is not going to leave India, or not for so long a time as will obstruct, or be likely to obstruct, the plaintiff, should he succeed; or that the suit is not a bona fide one; or that, even if it is, the institution of it has been vexatiously delayed till the defendant is

Attachment before judgment-continued. about to depart from India, in order to embarass or coerce him. SPENCE'S HOTEL COMPANY V. ANDERSON, 1 Ind. Jur. N.S. 294, Note.

(23) -Defendant leaving jurisdiction - Civ. Pro. Code, 1859, s. 80.-It is not necessary for the plaintiff to show that the defendant intends to obstruct or delay the plaintiff in execution of his decree, in order to justify an application to the Court for his arrest before judgment under Act VIII of 1859, s. 80. It is enough if his going away will have that effect. AGRA & MASTERMAN'S BANK V. MINTO, 1 Ind. Jur. N.S. 265.

(24)-Defendant leaving the jurisdictionRepairs of ship, suit for price of.-The defendant having employed the plaintiffs to do repairs to his ship on the promise that they would be paid for out of the proceeds of a letter of credit from the owners for that purpose, afterwards drew bills on the credit for other purposes. The defendant being about to leave Calcutta, on the application of the plaintiffs an attach. ment order was issued against him and the proceeds of the bills in the hands of P's agent. CALCUTTA DOCKING COMPANY v. PASSMORE, Bourke O.C. 125 Cor. 151.

(25)-Civ. Pro. Code, 1882, s. 483-Attachment before judgment-Power to be sparingly exercised. The power given to the Courts under s. 483 of the Civ. Pro. Code, 1882, should be exercised sparingly and with the utmost caution. The Court should be thoroughly satisfied, before it proceeds under that section, that the defendant is really disposing of his property with intent to obstruct or delay the execution of any decree that may be passed against him. SHOSHEE SHEKHORESWAR ROY V. HARO GOBIND BOSE, 13 C.L.R. 356

(26) Civ. Pro. Code, 1882, s. 483 (=0 XXXVIII, r. 6, new Code)-Attachment before judgment, when terminates.-An attachment before judgment, like a temporary injunction, becomes functus officio, as soon as the suit terminates. RAM CHAND V.

=

PITAM MAL, 10 A. 506 A W.N. 1888, 195. (A W.N. 1887, 297, Appl; 3 I.A. 230, 14 W.R. 394, 9 C. 656, R.)

(27)-Civ. Pro. Code, s. 648 - Residence.— Where an officer proceeding from Burma to England on leave, stayed for a few days at Madras on the way, this amounted to a resi dence for the purposes of s. 648 of the Civ. Pro. Code, so as to render him liable to arrest before judgment. EVERET V. FRERE, 8 M. 205. [R., 14 B. 541, 1 L.B. R. 222, 29 M. 239 = 16 M.L.J. 239-1 M.L.T. 71.]

(28)--Attachment before judgment, subsistence of, in case of re-attachment.-Although it is usual to re-attach property already attached before judgment, the proceeding implies no abandonment of the first attachment. KRISHNA DAS SURROWJI v. SURFUNNISSA BEGUM, 6 C. 129, P.C.7 I.A. 157.

RAMA

Attachment before judgment—continued. (29)-Attachments, priority among.-Where one of several writs first reaches the Sheriff, it has priority, and he has no power to deprive it of such priority and transfer it to another by first executing a writ delivered to him later. DWARKANATH SHAW v. PRANKRISTO PAUL CHOWDHRY, Bourke O.C. 260.

(30)-Attachment before judgment -Execution -Competency of Court.-A Court which cannot attach primarily in execution of its decree cannot attach in anticipation of it. MARTHAMMA V. KITTU SHEREGARA, 6 M.H C. 91.

(31)-Objection that property not transferable if to be taken then or on application for execu tion-Civ. Pro Code (Act XIV of 1882), ss. 483, 487, 488, 490.-When property is attached before judgment, the defendant is not bound to take exception to the attachment on the ground that the property is not transferable. Attachment before judgment stands on a different footing from attachment in execution in this respect. In such a case the proper time to take this objection is when the decree-holder applies for execution. BASIRAM MALO v. SRIMATI KATYAYANI DEBI, 15 C.W.N. 795.

The

(32)-Civ. Pro. Code (Act XIV of 1882), s. 488 Suit, dismissal of-Reversal on appeal, effect of-Court's inherent power-Civ. Pro. Code (Act V of 1908), O. 21, r. 58-Sale without attachment, order for Validity Objection as to legality of proceedings.-It is obligatory upon the Court to withdraw an attachment before judgment upon the dismissal of the suit. reversal of the judgment of dismissal on appeal does not operate to revive an attachment which has been cancelled under s. 488 of the Code. Hence a decree-holder is not entitled to bring the properties to sale without a fresh attachment thereof. If a Court is invited by a decreeholder to sell property which has not, as a matter of fact, been duly attached, and the Court is apprised of that circumstance by a person claiming to be interested therein, the Court has inherent power to investigate the matter. When a sale of immoveable property has actually taken place, and its validity is impeached on the ground that it was not attached, the absence of attachment does not, by itself, vitiate the sale. But the position is different when objection is taken to the legality of the proceedings before the sale has taken place. The duty of the Court, under such circumstances, is to ensure compliance with the provisions of the Code when there is stil ample time left for necessary action. SASIRAMA KUMARI V. MEHERBAN KHAN, 13 C.L.J. 243. (33)-Power of Court to attach before judg ment, property outside jurisdiction-Civ. Pro. Code, 1852, ss. 483 and 648.-A Court has power to attach before judgment, property outside its jurisdiction. It has been the practice in the Calcutta High Court to adopt such procedure. RAM PERTAB JHOWAR v. MADHO RAL, 7 C.W.N. 216. [Diss., 5 Bom. L. R. 570, 3 L.B.R. 255, U.B.R. 1907, C.P.C., 13, 4 M.L. T. 348-31 M. 502.]

Attachment before judgment-continued.

(34)-Priority-Attachment after decree if necessary-Act VIII of 1859.-An attachment previous to decree has nothing whatever to do with the question of priority between rival decree-holders, so far as that question depends upon mere priority of attachment. On the 27th June, 1866, the plaintiff sued B and on the 27th August, 1866 obtained an attachment before judgment over his property. On the 29th June, 1866, the defendants instituted a suit against the same person B. Both suits were tried together and both the plaintiff and the defendants obtained decrees against B on the same day. The said property of B was attached in execution of both decrees and the executions were completed simultaneously. The property was sold and the proceeds of sale in execution, so far as they could go, were paid to the plaintiff and defendants rateably. The plaintiff now sued to make the defendants refund so much as would completely satisfy his decree against B, on the ground that he had first attached the property and was therefore entitled to priority over the defendants. Held that both the parties having obtained their decrees at the same time and having attached the property at the same time in execution, were equitably entitled to have the proceeds of the execution divided between them, and that the party who obtained an attachment prior to decree was not, in consequence of his having done so, entitled to priority. Under Act VIII of 1859, though an attachment before judgment will remain in force after decree so as to keep property in the custody of the Court, the person who attached it must, if he wished to proceed against the property in execution of his decree, attach it de novo, proceeding in precisely the same manner as any other person holding a decree against the defendant would have to proceed, if he wished to attach that property. SRI RAMWANIK v. TIN COWRI RAI, 4 B.L. R. F.B. 63 13 W. R. F.B., 9. [Expl., 21 W.R. 66 14 B.L. R. 323; R., 2 N.W.P. 365.]

(35)-Of property outside jurisdiction-S. 6148, Civ. Pro. Code, 1882.-The property of a defendant, which is not within the jurisdiction of the Court cannot be attached before judgment under the provisions of s. 648, Civ. Pro. Code. A. M. MADAR SAIB BROTHERS & CO. v. MOONA ABDUL KASSIM, L.B.R. 1893-1900, 56.

(36)-Attachment before judgment of property situate outside the Court's jurisdiction-Allowable under the new Code-Civ. Pro Code (Act V of 1908), ss. 46 and 138, O. XXXVIII, r. 5 -Civ. Pro. Code (Act XIV of 1882), ss. 483, 648.-Though the property, referred to in cl. (b) of O XXXVIII, r. 5 of the new Civ. Pro Code, must be property within the local limits of the Court's jurisdiction, no such restriction is imposed with regard to the property mentioned in cl. (a). The rule clearly permits the attachment before judgment of property situate either within or without the legal limits of the Court's jurisdiction. The removal from the new rule of this

Attachment before judgment-concluded. restriction as to the locality in which property capable of being attached under it must be situate, which there was in the corresponding s. 483 of the old Code, has altered the law. SOMASUNDARAM CHETTY V. MUTHU VEERAPPA CHETTY, 10 Ind. Cas. 794.

See CIV. PRO. CODE, 1908, ss. 63, 73, 29 C. 773-6 C.W.N. lxvii.

-Compensation for, obtained on insufficient grounds-Power of Small Cause Court to grant -See CIV PRO. CODE, 1908, s. 95, 26 M. 504.

-Attachment before judgment on insufficient grounds-Award of compensation-Appeal-See CIV. PRO. CODE, 1908, s. 95; s. 104, O. XLIII. r. 1, 24 M. 6210 M.L.J. 355.

-Before judgment - Compensation for unnecessary attachment - Appeal-See Civ. PRO. CODE, 1908, s. 95, O. XLIII, r. 1, s. 104, A.W.N. 1905, 1972 A.L.J. 602=28 A. 81.

See CIV. PRO. CODE, 1908, s. 136, 1 L. B.R. 310.

-in suits for money-decrces in Subordinate Court-See CIV. PRO. CODE, 1908, 0. XL, rr. 1 to 3, L.B.R. 1893-1900, 432.

See EXECUTION OF DECREE-APPLICAAND POWERS OF TION FOR COURT, 12 B. 400.

EXECUTION

Attachment of Person-concluded.

(3) It is optional with a judgment-creditor to proceed in the first instance against either the person or the property of the judgmentdebtor, and the Small Cause Court is bound to issue execution according to the nature of the application made in writing after passing of decree. The Court may refuse execution against person and property at the same time, or against the person, when application for immediate-is made verbally at the time of passing decree. J. DAVIS AND CO. v. M. A. MIDDLETON, 8 W.R. 282.

Attendance in Court.

As to attendance of civil prisoners when required as parties to suits or witnesses in civil suits. Cir. No. 45, dated the 12th October, 1866, 6 W. R. Civ. Cir. Order, p. 12. Attestation.

See ESTOPPEL.

See EVIDENCE ACT, s. 68.

(1)-Hindu law-Attestation of gift deed by vendee-Effect on vendee's title. The attestation of a deed of gift of certain immoveable property, by subsequent vendee of the same property from the donor, would not affect the vendee's title, where the gift had not been completed by delivery of possession. ALEAJI GANGADHAR v. MUKTA, 18 B. 688.

(2)-S. 68, Evidence Act-Mortgage-Proof. -Where only one attestor proved a mortgagebond attested by more than two witnesses and where its due execution was not denied, held, that having regard to s 68 of the Evidence Act the document may be taken as properly proved. NUND KISHORE LAL V. KANEE RAM TEWARY, 29 C. 355 6 C.W. N. 395.

that

(3)-Meaning of.-Attestation means what is said to be attested happened in the presence of the attesting witness DINAMOYEE DEBI V. BON BEHARI KAPUR, 7 C.W.N. 160.

(4)-Attesting witness-Mortgage- Evidence Act (1 of 1872), s. 68-Transfer of Property Act (IV of 1882), s. 59-Writer of the deed.-A person who is present and witnesses the execution of a (mortgage) deed and whose name appears on the document, though he is therein described merely as the writer of the deed, is a competent witness to prove the execution of the deed. He need not be described in the deed as an attesting witness. RAJ NARAIN GHOSH v. ABDUR RAHIM, 5 C.W.N. 454. (20 A. 532, R.)

(5)-Of mortgage deed, question as to the validity of Applicability of maxim "omnia præ sumuntur rite et solenniter esse acta"Entry in the record-of-rights by settlement officer, effect of One of the issues in this case was, whether the mortgage-deed sued upon was genuine and for consideration. The first Court did not go into the question of consideration but held the mortgage to be invalid because the attesting witnesses were not proved to have seen the mortgagor sign the deed. Plaintiff