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Damodar Nandram Vs. Panalal Madiram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberAppeal No. 36 of 1906
Judge
Reported in(1907)9BOMLR540
AppellantDamodar Nandram
RespondentPanalal Madiram
Excerpt:
.....before judgment-appointment of receiver-affidavits-contents-practice. ; section 483 of the civil procedure code provides for the attachment of the property of the judgment-debtor : it does not apply to the joint property of a partnership of which the judgment-debtor is a member. in cases of this kind the proper order to make is the appointment of a receiver, under section 503 of the code. ; affidavits produced in a case should comply with the terms of section 196 of the civil procedure code. in cases of interlocutory applications, the statements of the declarant's belief are admissible ; but the belief must be stated and reasonable grounds thereof set forth. - - 7. we allude to it now because we think both pleaders and judges should be careful when affidavits are used to see..........as it is expressed to be an attachment presumably the order was passed under section 483 of the civil procedure code and it appears to us that in this respect the order was erroneous; because that section provides for the attachment of the property of the judgment-debtor; and it is common ground here that this is not the property of the judgment-debtor but is joint property of the partnership.3. this objection however does not apply to the appointment of a receiver which is the proper order to make in a case of this kind and it seems that the provisions of section 505, civil procedure code, have been complied with.4. there is one irregularity to which we wish to draw attention because it is of common occurrence and it is that the affidavit does not comply with section 196 of the civil.....
Judgment:

Lawrence Jenkins, C.J.

1. This is an appeal from an order which is expressed to be an attachment of property before judgment by the appointment of a receiver.

2. So far as it is expressed to be an attachment presumably the order was passed under Section 483 of the Civil Procedure Code and it appears to us that in this respect the order was erroneous; because that section provides for the attachment of the property of the judgment-debtor; and it is common ground here that this is not the property of the judgment-debtor but is joint property of the partnership.

3. This objection however does not apply to the appointment of a receiver which is the proper order to make in a case of this kind and it seems that the provisions of Section 505, Civil Procedure Code, have been complied with.

4. There is one irregularity to which we wish to draw attention because it is of common occurrence and it is that the affidavit does not comply with Section 196 of the Civil Procedure Code, Thatsection provides that 'affidavits should be confined to such facts a the declarant is able of his own knowledge to prove, except a interlocutory applications on which statements of his belief may be admitted, provided that reasonable grounds thereof be set forth.'

5. Now this is an interlocutory application, so that the statements of the declarant's belief were admissible. But the belief is not stated nor arc reasonable grounds thereof set forth.

6. Our only reason for not insisting upon the compliance with this section in this case is that no such objection was taken before the lower Court or even before us.

7. We allude to it now because we think both pleaders and Judges should be careful when affidavits are used to see that the provisions of Section 196 are observed and any failure in this direction can only arise from a careless disregard of the provisions of the Code which is much to be condemned.

8. In this case however we will dismiss the appeal with costs.


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