Some  Valuable  Decisions  on  Different  Points  Regarding  Attachment

under  Civil  Procedure  Code  Known to many, But Perhaps Unknown to 

Young Advocates and Beginners

(By N.Subramaniam, Advocate, High Court of Kerala, Ernakulam)

1. Parties may by agreement take their case out of the deeming consequences of attachment Order 21 Rule 55. 1965 Cal 163 at 166 Biharilal Mitter v. Saral Kumar.

2. Even under old Code it has been held that on payment of decree amount in court, attachment becomes in-operative, even though it is not withdrawn formally (1905) ILR 28 Mad. 380 (385) (D.B). (Vibhudapriya Thirtha Swami v. Yusuf Saheb) (A decision under S.276 and 295 of CPC XIV of 1882)

3.  When money is attached and brought into court in execution of a decree it cannot be said that the judgment debtor has paid the money into court under clause (a) of Order 21 Rule 55 C.P.C. The attachment would continue till that amount is disposed of by the court by paying it to the decree holder or otherwise. 1940 Oudh 360 (361) D.B.. (Harohi Kosh v. Gulam Hyder Khan).

4.   Under Order 21 Rule 57, once an attachment under Order 38 Rule 5 is made, it continues until full satisfaction of decree or till attachment is lifted. 2003 (2) KLT 866 (D.B.) (Tony Brothers v. Navodaya Enterprises) overrules 1994 (1) KLT 445 (Sebastian Joseph v. Cherian Varghese).

5.   Attachment does not cease on dismissal of execution for default. (1962 KLT 264 (F.B.) = 1962 KLJ 1239 FB = AIR 1963 Ker. 16) Arumugham Ammal v. Narayanan Panikker (AIR 1952 T.C. 414 (F.B.) Para (9) M.D. Abdul Khader v. Padmanabha).

6.   In the suit there was an attachment before judgment under Order 38 Rule 5. Suit was dismissed. Plaintiff filed appeal. Appeal was allowed and decreed in favour of plaintiff. Attachment before judgment is revived. AIR 1952 TC 414 (F.B.) Para (12).

7.   Attachment before Judgment ordered to continue for a certain period. Period expired. Fresh attachment is necessary if period is over. AIR 1962 Mad.383 (para 5). Kuppuswami (Minor) v. Rangai Gounder.

8.   The power under Order 38 Rule 5 will not come to an end merely because suit is decreed. This power can be exercised, when sufficient security is provided, when appeal or execution proceedings are pending. After passing of judgment and decree application can be filed only before Appellate Court for lifting of attachment. 2008 (1) KLT 136 (D.B.) Siddharthan v. Parveen Chandran. 2003 (2) KLT 866 (D.B.) referred.   1991 (1) KLT 393 is overruled.

9.  Once a decree is satisfied, or a decree is set aside or reversed, then the attachment is deemed to be withdrawn.   The lifting of attachment is automatic.(AIR 1937 Cal. 390), Sastu Charan Biswas Banik v. Gopal Chandra Saha (AIR 1944 Bom. 50), Radhabai Gopal Joshi v. Gopal Dhondo Joshi. The above decisions have been followed in 2008 (1) KLT 136 (Para 2at 139).

10. In the decision reported in AIR 2003 Karnt. 128 = ILR 2003 Karnt. 648 (S.B.) Linga Bhatta v. Saravana Enterprises (para 13) it has been held that if an attachment is made in execution, on dismissal of execution petition, the attachment ceases. The decision was rendered under Order 38 Rule 11A and Order 21 Rule 57.

11. In this connection, it is worthy to quote para 58 of the decision rendered by Honourable Supreme Court in AIR 1982 SC 989 (Sardar Govind Rao Mahadik v. Sahai)

“58. What is the effect of attachment before judgment? Attachment before judgment is levied where the court on an application of the plaintiff is satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. The sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against decree becoming infructuous for want of property available for which the plaintiff can satisfy the decree. The provision in S. 64 of the C.P.C. provides that where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. What is claimed enforceable is the claim for which the decree is made. Motilal’s suit was for a money claim. It finally ended in a decree for  Rs.500/- by High Court and in between the last appellate court had dismissed Motilal’s suit in entirety. There is nothing to show that the attachment which would come to an end on the suit being dismissed would get revived if a second appeal is filed which ultimately succeeds. In act, a dismissal of the suit may terminate the attachment and the same would not be revived even if the suit is restored and this becomes manifestly clear from the newly added provision in sub-rule (2) of R.11-A of O.38, C.P.C. which provides that attachment before judgment in a suit which is dismissed for default shall not be revived merely because by reason of the fact that the order for the dismissal of the suit for default has been has been set aside and the suit has been restored. As a corollary it would appear that if attachment before judgment is obtained in a suit which ends in judgment is obtained in a suit which ends in judgment is obtained in a suit which ends in a decree but if in appeal the decree is set aside the attachment of necessity must fail. There should be no difficulty in reaching this conclusion.”

12. AIR 1989 SC 989 (State (Delhi Administration) v. Jagjit Singh) has been followed in AIR 2002 SC 812 and AIR 2003 SC 3542.

Punishment -- Not  an  Interrorem,  but  a  Therapeutic  Measure

(By V.K.Babu Prakash, District Judge, M.A.C.T., Thalassery)

“And then justice in fair round belly, with eyes severe and beard of formal cut, full of wise saws, plays his part to mend the wrong man to right manners.”    -- William  Shakespeare

1. In the wake of the Delhi gang rape and various other subsequent heinous crimes that happened, people in every nook and cranny have a perception that crime rate is increasing and it seriously puts into trouble social security. Print and electronic media are giving undue importance to such issue giving hyperboles and curry favour the issue to disproportionate level. There is a hue and cry in the society that Government machinery has failed and the criminal justice delivery system has come to a grinding halt to such a level that punishment meted out to criminals no longer looks to be deterrent or dinunciatory. Investigation of a crime by the police is not at all impartial and scientific and police are no longer watch dogs of society who can be trusted. Trial of a case takes years and years together which ultimately generates revulsion and frustration in the wounded psyche of victims. What is the solution for this pandemic apprehension? Is the criminal justice delivery system of our country in a turmoil or terminal decline unable to get reformed or revamped? This new kind of panic perception has also led to certain proposals regarding change in the law and in particular about the punishment to be imposed on the rapist convict. It suggested inter alia that -

a)  the convict should be stripped and flogged in public.

b)  the convict should be physically castrated in public.

c)  public hanging of the convict straightaway and forget about trial and sentence.

2. The feminists strongly recommended for the above unusual punishment. Central Government sensing danger on the sudden uprising of the people and their protest acted quickly and appointed sobre and sensible former Judge late J.S.Verma to head a Commission to enquire into the issue and recommend suitable punishment measures to curb the malady. J.S.Verma Commission suggested certain stringent measures and punishments which are not barbaric. Wisely the Government accepted the Verma Commission Report and is acting on it for a legislation. Now, the million dollar question is whether extreme and harsh punishment will serve the purpose of halting the crime rate. Michael Kirby, the 20th century Australian jurist holds about the concept of crime as follows, “crime is the revolt against the inability to fulfill one’s desire, unless society applies the means to fulfill desires and to succeed in life, crime can never be arrested. Law is a life science and human behavioural cybernetics”. Modern think tanks and penologists hold the view that when civilization advanced, new ideas regarding the individuals right and his duty towards his fellow human beings developed and crime is no longer considered an offence against an individual but a revolt against the whole society and an attack on the civilization of the day. When human beings started to live as a society in a collective form, the responsibility of providing security to the society has become the foremost duty of the Government ruled by law. In a democratic set up like India, the major election mandate of the people is to provide them and their lives adequate and sufficient protection from any sort of infringement of their rights.

3. Punishment is the sanction imposed on the offender by the sovereign authority for the infringement of the law. The main object of a penal statute is to avoid the mischief of pro privato commodo and achieve the act of probono publico. It means in simple terms to avoid private mischief and achieve public confidence. The co-relation between crime and punishment has been the subject of perennial interest for criminologists and social thinkers. Chapter III of the Indian Penal Code sets out various punishments which can be imposed when a crime punishable under any of its section is established, but imposition of adequate punishment for a crime is none too easy a task which is called a Judge’s dilemma like a Doctors dilemma. The mounting perplexities which surround the institution of criminal punishment manifest a compromise between distinct and partly conflicting principles. General interest in the topic of punishment has never been greater than it is at present. On the other hand, the old Benthamite theory of confidence of fear in the minds of the criminals and potential criminals of the penalties threatened by the law as a powerful deterrent has waned with the growing realization that the part played by calculation of any sort of anti social behaviour has been exaggerated. The question that gazes the criminal justice delivery system is, what is the immediate aim of the criminal law? Is it to punish with a view to deterring like minded person or the wrong doer from repeating his conduct or reforming him by suffering the pain of punishment? No clear cut and precise approach has been developed on the aim of punishment. Many competing theories, complicated ideas and even occasionally inconsistent approaches, jostle together in the mind of a Judge when he sentences the criminals convicted in his court.

4. Amartya Sen, the Nobel laureate in his latest book ‘Idea of Justice’ has done a critical study of social and legal justice prevailing in the society at large. Amartya Sen has focussed his study on the theories of John Rawl and critically evaluated them in his book. Sen postulates a simple example to convey his theory regarding dispensation of justice by individual Judges in which the personal concept and idea of justice held by the individual Judge will play a pivotal part. Three children are engaged in a dispute over a flute. One claims that she wanted the flute as she is the only one who can play it well. The second one claims it holding the view that he hails from a poor family and that he never had the chance to own a toy, so that, he wanted the flute badly. The third child claims the flute setting out the contention that the flute is acquired by her with her hard earned income saved from pocket money. If the dispute comes before a Judge who maintains an economic point of view on the concept of justice, he will then order to give the flute to the second child who comes from a poor family background. If the Judge is a liberal minded one, then he will perhaps decide to give the flute to the third child. If the Judge happens to be a utilitarian, then he may handover the flute to the first one who alone can play it. So, the concept of justice varies according to the personal perception and ideology of the Judge, argues Amartya Sen. Likewise, the sort of punishment to be imposed varies from one Judge to another depending upon his perception and attitude towards crime and punishment.

5. Cessare Beccaria and Von Hirsch, sociologists and penologists hold that, crimes are to be measured by the injury done to the society and seriousness of a crime depends both on the harm done by the act and degree of actor’s culpability. But, how the degree of that culpability is measured? No thermometer or barometer can be devised to measure it. Sir James Fits James Stephen, the great Victorian Judge vigorously supports harsh punishment like capital punishment. He said as follows, “No other punishment deters men so effectually from committing crimes as the punishment of death. This is one of those propositions which is difficult to prove, simply because, they are in themselves more obvious than any proof can make them. The threat of instant death is the one to which result has always been made when there was an absolute necessity for producing some results. No one goes to some inevitable death except by compulsion. This is because all that a man has will be given for his life. If any secondary punishment, however, terrible, there is hope, but death is death, it’s terror cannot be described more forcibly”. However, Dr.Hart and Professor Thorsten Sellin do not support James Stephen’s view at all. They hold that “the certainty of death is one thing perhaps for formal people nothing can be compared with it. But the existence of a death penalty does not mean for the killer certainty of death at once. It means there are some probabilities of death in the future. The way in which the convicted killer may view the immediate prospect of the conviction after he has been caught must be a poor guide to the effect of this prospect upon him when he is contemplating to commit a crime”.

6. Thus, large number of factors fall for consideration in deciding the appropriate sentence, the broad object of punishment in progressive civilized society is to impress upon the guilty party that a commission of crime does not pay and that it is both against his individual interest and also against larger interest of the society to which he belongs. Modern social scientists psycho analysts and criminologists emphasise that crime is a pathological aberration and therefore, the criminal can ordinarily be redeemed. The State has to rehabilitate him rather than avenge the crime. The sub-culture that leads to anti-social behaviour has to be countered not by undue punishment but by re-culturalization. The infliction of harsh and savage punishment is thus a relic of past and regressive times. Thus, a therapeutic rather than an interrorem attitude should prevail in our criminal justice delivery system, as brutal punishment of the person merely produces fracture of his mind. If a man is punished retributively, it only injures him. If he has to be reformed, he must be improved and men are not improved by injuries. On the other hand, too light or flee biting sentence has no bearing or impact upon the criminal. Offenders who are menace to the society should be mercilessly and inexorably punished in the severest term. On the whole, crime is a social malady and the society is accountable for feeding the criminal for the crime. It is worthwhile to remember the poignant words of Albert Camus, the Algerian thinker, “if the society wanted to punish or annihilate an offender as he is anti-social, then the society must maintain such an order that it is beyond all impurities, inequities and social maladies.”

Driving Force of Culture - III

(By Dr. K.B. Mohamedkutty, Senior Advocate and Former Law Faculty Dean, Calicut University)

 Glimpses of cultural expanse through ages convince us that education, morality   flowing from various sources, economic condition, tradition, art, literature, and law are the chief driving forces of culture.  These are necessary for its germination and growth which take place only in congenial atmosphere or background. Of these factors, law is the last in order.   Law is not a primary force in the formation of culture.   It indeed is a secondary force.   In other words, law can never be higher than the economic order or moral order in the formation of human behaviour. For example, we cannot prevent offences against women by legislative or judicial process alone; law has certainly a role to perform, but its frontiers are limited.  The Indian Penal Code has its limits though it is a marvellous piece of law on crime.

Under the rubrics of economic prosperity and morality endless factors may come in.  Even geography and climate might influence culture in a big way. Needless to say the influence of climate over the minds and bodies of inhabitant: rigorous cold or severity of winter, warm or temperate atmosphere in the summer etc.has their impact on man.  The mountains, rivers and rainfall exert influence in the way of looking at things. The custom, belief, art and literature contribute their share to the slow and steady growth of culture differently in different regions of the world.  Above all, the way one feels stems from values cherished by man and society. For example, it is said that even a kind look adds to culture and that there is spirituality in it.  There is intellectual pursuit in it. It has endless proliferations.  Thinking legally and living lawfully are certainly inalienable part of it.  As Jawaharlal Nehru said, a beautiful piece of ancient jewllery or a jar located in an archeological survey in a historical spot or a brick-house or a thoroughfare considered to be built during the days of Rig-Veda are pointers of social life of those days. With the advent of social life, we can imagine that a kind of self-regulation might have governed the people in ancient society as well.  Otherwise brightened cultures of the past in many courtiers of the world could not have been flourished at all.  Undoubtedly, law assisted this process, and no legal system can stand in isolation as no country is an island.  Law of a country absorbs in it good models from other legal systems.  A kind of cultural synthesis takes place in this way as well.

Both culture and law attain several heights.   But no society or nation can claim that it is at the pinnacle of good things in life.  Deficiency in standards exists and always existed in all countries and among all people.  The height of culture is measured in terms of its inner strength, vitality and tradition of each culture. For example, India inherits a stupendous past.  It is unbroken and continuous from ancient times.  Except perhaps China, no country in the world has such a continuous tradition.  Behind this ever flourishing tradition, legal order has played its part.   In the civilization of Egypt or Babylonia, historians do not find such a connecting link with the past and the present. The importance of tradition in the formation of culture is magnificent, but the same is not achieved simply because of heritage or tradition.    

Force  of  Equity 

The law of a country absorbs equity as well. Equity is the heart and soul of law.   It is said that equity is the higher law.  The legal system of all countries has developed equitable doctrines or norms for practical applications. The spirit of mercy is assimilated in law through the dynamics of equity. It instills human approach in law based on justice according to each situation. It is anchored on good conscience of the Judge who occupies the seat of justice.    Equity is not a modern concept. In all legal systems we find its application.  For example, in ancient China an order of execution of criminal was carried from the court slowly, that is to say, six miles a day.  But a pardon was communicated as quickly as possible.  The equity in such a procedure is clear enough.  The ancient Chinese had also another practice of equity. If five sons of a parent are guilty of offences, one of them was forgiven.  This is for continuing the family and for protecting the aged in the family.  The basis of equity is compassion and human consideration in the application of law. The Supreme Court has recently observed rightly that our culture could be measured from our debt relief laws.

The culture derived from art and law is not of the same nature.  The chief difference is that art is not a product of intellect.  It is something created from heart or prolific imagination of man. It is supreme no doubt. But law as a source of culture emerges from the combined source of head and heart.   Art sublimates human heart.  Equity does the same thing in a different way. Without the element of heart in law, it becomes barren and in a way insulated from culture.  It is believed, and rightly too, that the basis of culture is the space given in your acts and deeds for the welfare of the culture.  It is an axiom of law that no law is unjust.  The desire to render justice to man is the goal of law.  Pursuit for justice thus becomes a definite endeavour of legal culture. We do not know any other better solution as of now to substitute justice.  The more justice a nation extends to its people, the more civilized it becomes.  Oliver Wendell Holmes says in his inimitable style that the law embodies the story of a nation’s development through many centuries.   The national glory stems from its socio-legal framework. 

The law indeed has had its set backs.   Its laudable aim has not been materialised always.   There existed oppressive laws.  The outcome of law depends upon the attitude of those who mould and implement it.  Many barbarous laws prevailed in the past.  Even in modern laws evil trends are visible.  For example, law of debt protected and continues to protect the interest of the money lender.   The exploitation of small producer or farmer has not been eliminated.  In the past the debtor was compelled to mortgage not only his land, but also forced to pledge his wife, children and himself.  Enslavement of man for debt was permitted in the Eastern and Western legal systems of ancient past. Today, law in every country has a role of building civility among the people.  It is law’s mission to advance culture of the people.

Cutting  Edge  of  the  Law    

Mere knowledge of law or its existence in text book or statute has nothing to do with human progress. The cutting edge of law is its practical wisdom and action for extending justice for the benefit of man. The wall that separates law and justice is anti-thesis of culture. We can easily visualize that when law shines or diminishes, it is reflected in culture accordingly. In other words, law becomes the barometer of culture.  When good laws influence people and society by uplifting their way of life, a kind of fulfillment takes place.  Morality, of course, stands on a higher plane and occupies a wider field in the evolution of culture.   In curbing evils arising out of uncontrolled masculinity or barbarous acts which appear in different forms like rape, killing, communal violence and the like, law does not seem to be effective as its only weapon is punishing the culprit.   But such tendencies could be somewhat effectively minimized by addressing the moral sense of the community, which occupies a wider spectrum than the law.  Norms of morality are taken care of by the law within its limits as law is also the embodiment of moral sentiment of the people.  It is rightly said that in a society of angels there would be no need for law.

 History  Bungles 

The more we study the law and its ways, the more we realise that law has a cultural mission and that it is an off-shoot of culture.    In fact, the twin forces of law and culture are intertwined and their impact on each other is interwoven. The mutual cohabitation of culture and law  is real indeed.  Culture is the setting in which law emerges and remains as intellectual omnipresence which is deep-rooted in our psychic tradition. Though it is widely appreciated in jurisprudential thought process that the life of man is lived under the umbrella of law, the fact that the history of law is the epitome of history of culture is not adequately emphasized.  Law and legal institutions help man to unite and co-operate for peaceful co-existence and to establish his identity for weaving a certain good standard of life. The Rule of Law aims at materialisation of legal culture which aims at peace and harmony.  The nucleus of culture is the measure of justice according to law.

In the study of history the driving force of law is not properly examined. History is seldom taught from the perspective of civilization as it gives more emphasis to kingly wars or conflicts between nations and political systems.  The result is that there is poor understanding of the endless factors and influences leading to the formation of people’s life. All great law-givers of humanity have shaped culture in a big way. Manu, Lord Buddha, Jesus, Tao, Prophet Mohamed, Justinian, Napoleon and others of great eminence contributed towards legal culture. When prophets and saints declared that every one has a duty to help his neighbour, they did not mean immediate neighbour.  The word ‘neighbour’ has an extensive meaning in the context. It extends to the whole world.  The ancient law-givers of the world realized that at least to some extent earthly ills and miseries of life are consumed or melted away in the magnificent influence of law tempered with compassion.  A cursory look at history convinces us that all cultures and civilizations are organic in nature in the sense that they are born; they have childhood, youth and old age.  They ripe and decay giving space for new cultures and civilization  to step in and develop. 

Later, out of revolutions, renaissance or upheavals emerged from modern political thinking and action, we find springing up of laws of socialism and democracy all over the world.  The empty stomach of the hungry and the inextinguishable fire it produced from eighteenth century onwards throughout the world liberated policy decisions of rulers from the closed chambers of kings and emperors.   The politics and its necessary concomitant of legal change began to be discussed in streets and market places before it reached the Legislatures or the Parliament.  Better law and better judicial apparatus came into being notwithstanding shortcomings. The savage laws of crime and property were replaced with the emancipation of the society. The cultural atmosphere has undergone change for the better. The development of technology and science added momentum to the reawakening of laws and social culture.  The politics and the law are its important catalyst in modern times.

Siby Mathew -- an  optimist

(By Hon'ble Mr. Justice K.T. Sankaran, Judge, High Court of Kerala)

“A pessimist sees the difficulty in every opportunity; an optimist sees the opportunity in every difficulty”                                                                                             -- Winston Churchill

Advocate Siby Mathew was an optimist. He was an erudite and successful lawyer. I watched his performance as a lawyer for the first time in 1983, when he was arguing a difficult case before Justice K.S. Paripoornan. The way in which he presented the case was amazing. I could see the approbative gesture from the Bench when he argued the case. Over the years, I had occasion to watch his arguments in various Courts. He never quarrelled with the judge or with the lawyer on the opposite side. He was affable and courteous to all. He was affectionate to the junior members of the Bar.

Advocate Siby Mathew was the heart and soul of Kerala Law Times (KLT for short), the prestigious law journal. During his tenure as the Chief Editor, KLT grew to greater heights. Siby Mathew believed in team work. He never quarrelled with the tools. He took his team members into confidence and achieved best results.

Siby Mathew was expected to undergo a surgery a few weeks ago. He met me in my chambers and disclosed the same and requested me to pray for him. He said: “Sir, I want to live more. I wish to attend courts. I have so many things to do. I am sure that you will pray for me.” From that day onwards, I prayed for him. On the next Tuesday, the day fixed for surgery, I contacted Advocate Philip J. Vettickattu to get the necessary information about surgery. Advocate Philip informed me that the surgery was postponed due to some unforeseen complication. A few days thereafter, Siby Mathew left us for heavenly abode. I was away at Chandigarh at that time and therefore I could not pay my last respects to him. I am so sad. 

After coming back from Chandigarh, I met Advocate Philip. He showed me the table where Siby Mathew worked. The table was clean. Philip said that Siby Mathew cleared all the work even on the day he went to the hospital. He even emptied the waste basket, said Philip. I was told by Philip that Siby Mathew never commanded others to do any work but showed them how to work, by doing it himself.

Advocate Siby Mathew had applied to the High Court for designating him as Senior Advocate. The Full Court meeting was scheduled to be held on 19th November 2013 to consider the applications of the members of the Bar for being designated as Senior Advocates. Advocate Siby Mathew passed away on 16th November 2013. The High Court was thus disabled to consider his application. The High Court lost the opportunity to honour Advocate Siby Mathew by designating him as Senior Advocate. I am of the personal view that deserving members of the Bar should be invited by the High Court for getting their willingness for designation as Senior Advocates. To my mind, that is the honourable way of doing things.

“ Do not go where the path may lead, go instead where there is no path and leave a trail”- Emerson said. Siby Mathew trod where there was no path and he left a trail.