Case: Chouthi Parsad Gupta Vs. Union Of India And Ors

Wanchoo, J. 1. This is an appeal on a certificate granted by the Assam High Court and arises in the following circumstances. The appellant had obtained a money decree against Thakur Prosad Jayaswal 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 O. 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 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, 1954 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. 2. 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 co 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. 3. 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. 4. We are of opinion that there is no force in this appeal. Order XXI, R. 46 (1) 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 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: (Section 145 reproduced). 5. 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 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 O. 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 0. XXI, R. 46 (1).

Decision:
0[ds]4. We are of opinion that there is no force in this appeal. Order XXI, R. 46 (1) 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 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 case5. 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 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 O. 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 0. XXI, R. 46 (1).