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
section 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 OXXI r 46 1ciii 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 ie 41 RS 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 section 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 46i 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 OXXI 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 791
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 OXXI r 46 1
The proper procedure for the court to follow was to sell the property under OXXI r 64 and then pass an order under OXXI 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 section 145 of the Code
We agree with the High Court that section 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 fulfilment 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 section 47 Provided that such notice as the court in each case thinks sufficient has been given to the surety
 A bare perusal of section 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 OXXI 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 461 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 section 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 OXXI r 46 1
The appeal fails and is hereby dismissed with costs to the Union of India
VPS Appeal dismissed


Summary:
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 461 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 pricelure which was to sell the property under OXXI r 64 and then pass an order for its delivery under OXXI r 792 the Court ordered the Sub divisional Officer to produce the property and when it was not produced proceeded under section 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 OXXI r 461
209 H 210 B C