Chouthi Parsad Gupta Vs. Union of
India & Ors [1966] INSC 150 (31 August 1966)
31/08/1966 WANCHOO, K.N.
WANCHOO, K.N.
SHAH, J.C.
BACHAWAT, R.S.
CITATION: 1967 AIR 1080 1967 SCR (1) 207
ACT:
Code of Civil Procedure (Act V of 1908), s.
145 and O.XXI, r. 46(1) -Prohibitory order under the rule-If s. 145 is
attracted.
HEADNOTE:
The appellant, who was the decree-holder,
applied for the execution of the decree. The Sub-Divisional Officer, Military
Engineering Service, was in possession of some movable property of the
judgment-debtor. The Court ordered attachment under 0. XXI, r. 46(1), Civil
Procedure Code by prohibiting the Sub-divisional Officer from handing over the
property to the judgment-debtor. Thereafter, in-stead of following the proper
price(lure which was to sell the property under O.XXI, r. 64 and then pass an
order for its delivery under O.XXI, r. 79(2), the Court ordered the Sub-
divisional Officer to produce the property, and, when it was not produced,
proceeded under s. 145 of the Code treating the Union of India as the principal
judgment-debtor.
HELD: Section 145 of the Code was not
applicable to the cage. That section only applies when a person becomes liable
as a surety and the execution Court was wrong in holding that the
Sub-divisional Officer became a surety simply because attachment had been made
by the prohibitory order under O.XXI, r. 46(1). [209-H, 210 B-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
No. 556 of 1964.
Appeal from the judgment and order dated
March, 24, 1961 of the Assam and Nagaland High Court in M. A. (F) No. 29 of
1956.
B. Sen and D. N. Mukherjee for the appellant.
S. G. Patwardhan and R. N. Sachthey, for the
respondent.
The Judgment of the Court was delivered by
Wanchoo, J.-This is an appeal on a certificate granted by the Assam High Court
and arises in the following circums- tances. The appellant had obtained a money
decree against Thakur Prosad Joyaswal and others in 1947. As the decree
remained unsatisfied it was transferred from Calcutta to Gauhati for execution.
On May 2, 1953, an application was made for execution in the court at Gauhati
by attachment under 0. XXI, r. 46 of the Code of Civil Procedure of certain
movable property of the judgment-debtors which was said to be in the possession
of the Sub-Divisional Officer, Military Engineering Service, Pandu.
Consequently an order was issued under O.XXI r. 46 (1)(c)(iii) prohibiting the
Sub-Divisional Officer from parting with 208 the property of the
judgment-debtors. It may be mentioned that the Sub-Divisional Officer is
subordinate to the Garrison Engineer, Shillong. Though certain applications
were put in on behalf of the Sub-Divisional Officer before the court, it was
only on February 1, 1954 that the Acting Garrison Engineer, Shillong stated
before the court that the movable property in question (i.e. 41 R.S. joists)
had been sold and delivered as far back as November 22, 1951 to Messrs.
Ghunilal-Kanhaiyalal of Palasbari. This objection was considered by the
execution court and it held on September 25, 1964 that this belated statement
that the property in question had been sold as far back as November 22, 1951
could not be believed. The execution court therefore dismissed the objection
and ordered execution to proceed.
Thereafter orders were issued for the production
of the joists but they were not produced. Thereupon the appellant applied that
the Union of India should be considered to be the principal judgment-debtor and
execution should be levied against the Union of India. The Union of India
objected to this and on April 21, 1956 the objection of the Union of India was
dismissed and the execution court held that the Union of India be treated as
the principal judgment-debtor and be made liable to the extent of the proceeds
of the attached joists. Later on the same day, a further legal argument was
raised on behalf of the Union of India to the effect that as there was no
surety bond the Union of India could not be treated as the principal
judgment-debtor. This objection was heard and finally the court ordered on
April 28, 1956 that even though there was no surety-bond executed on behalf of
the Union ,of India it was liable as a surety.
Thereupon the Union of India appealed to the
High Court against the order of April 28, 1956.
The High Court allowed the appeal and set
aside the order ,of the execution court holding that no action could be taken
against the Union of India under S. 145 of the Code of Civil Procedure upon
which the execution court had apparently relied. Thereupon the appellant asked
for and obtained a certificate from the High Court, and that is how the matter
has come before us.
We are of opinion that there is no force in
this appeal.
Order XXI r. 46(i) provides that in the case
of other movable property not in the possession of the judgment- debtor, except
property deposited in or in the custody of any court, the attachment shall be
made by a written order prohibiting the person in possession of the same from
giving it over to the judgment-debtor. The necessary prohibitory order had been
issued by the execution court in this case with respect to 41 joists -and had
been received by the Sub- Divisional Officer. Such a prohibitory order is
sufficient for the purpose of attachment, though the 20 9 property mentioned
therein is not actually taken in possession by the Court. After attachment has
been made in the manner provided by r. 46 the next step that the court has to
take is to order sale of the property attached. Then comes O.XXI r. 79 which
provides that where the property sold is movable property of which actual
seizure has been made, it shall be delivered to the purchaser [see r. 79(1)].
But where the property sold is movable
property in the possession of some person other than the judgment-debtor, the
delivery thereof to the purchaser shall be made by giving notice to the person
in possession prohibiting him from delivering possession of the property to any
person except the purchaser [see r. 79 (2)]. In the present case there was no
actual seizure of the property but attachment had been made under O.XXI r. 46
(1). The proper procedure for the court to follow was to sell the property
under O.XXI r. 64 and then pass an order under O.XXI r. 79 (2) for its delivery
in the manner provided therein. The court however went on asking the Sub Divisional
Officer to produce the property and when it was not produced it proceeded under
s. 145 of the Code. We agree with the High Court that s. 145 has no application
in the present case.
Section 145 runs thus :
"Where any person has become liable as
surety- (a) for the performance of any decree or any part thereof, or (b) for
the restitution of any property taken in execution of a decree, or (c) for the
payment of any money, or for the fulfillment of any condition imposed on any
person, under an order of the court in any suit or in any proceeding consequent
thereon, the decree or order may be executed against him, to the extent to
which he has rendered himself personally liable in the manner therein provided
for the execution of the decrees and such person shall, for the purposes of
appeal be deemed a party within the meaning of s. 47:
Provided that such notice as the court in
each case thinks sufficient has been given to the surety." A bare perusal
of s. 145 shows that it applies when a person has become liable as surety. Now
the mere fact that an attachment was made of 41 joists said to be lying with
the Sub-Divisional Officer by the issue of the prohibitory order under O.XXI r.
46 does not make the Sub Divisional Officer or the Union of India a surety for
the performance of the decree which was in execution. There was no surety bond
taken from the Sub-Divisional Officer and the joists 2 1 0 were not actually
seized by the court and handed over to the Sub Divisional Officer as suparddar
on the basis of a surety bond. If that had been done some question may have
arisen whether the Sub-Divisional Officer did become a surety for the
performance of the decree or part thereof. But where merely a prohibitory order
is issued under 0. XXI r. 46(1) and attachment is made in that manner, there
can be no question of the person to whom the prohibitory order is issued
becoming a surety for the performance of the decree.
We therefore agree with the High Court that
s. 145 of the Code was not applicable to this case and the execution court was
completely wrong in holding that the Sub-Divisional Officer became a surety
simply because attachment had been made in the manner provided in O.XXI r. 46
(1),. The appeal fails and is hereby dismissed with costs to the Union of
India.
V.P.S.
Appeal dismissed.
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