Skip to content


Champaklal Rangildas Shah Vs. Swastik Bharat Kala Kendra and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revn. Appln. No. 242 of 1959
Judge
Reported in(1959)61BOMLR1356
ActsCode of Civil Procedure (CPC), 1908 - Order 38, Rule 5
AppellantChampaklal Rangildas Shah
RespondentSwastik Bharat Kala Kendra and ors.
Appellant AdvocateImdadali, Adv.
Respondent AdvocateN.L. Belekar, Adv.
Excerpt:
.....in a handicraft personally and who depends for his living essentially on the proceeds derived from that handicraft. (6) before parting with the case i would like to mention the offers which were made by..........should not be prevented from eking out their existence. the same cannot however be said about firms. a firm does not individually work as an artisan or as an agriculturist.(4) in this connection i may refer to some decisions of the high court in india. in nihal singh v. siri ram, air 1939 lah 388, the question waas as to what was meant by the word `agriculturist' and in this connection they also considered what is the meaning of the word `artizan'. dalip singh j., who delivered the judgment of the court observed:'reading clause (b) of the section it appears to me clear that the juxtaposition of the word agriculturist'along with the word `artizan' implies a person who occupies himself in tilling the soil and whose livelihood depends on this tilling of the soil. it could hardly be.....
Judgment:
ORDER

(1) This is an application for revision of the order of Mr. H. K. Karmarkar, Judge Small Cause Court, Nagpur, in civil suit No. 1673 of 1959 releasing from attachment two embroidery machines which were attached by the applicant before judgment under O. 38 R. 5 of the Code of Civil Procedure.

(2) The relevant facts are as follows: The applicant instituted a suit against the opponents for the recovery of Rs. 1,200/- alleged to be due on foot of accounts. The applicant alleges that opponent No. 1 is a partnership firm and opponents 2 to 5 are members of that firm. On 28-2-1959, the applicant made an application under O. 38, R. 5 of the Code for attachment before judgment of two embroidery machines which according to him are the property of the firm. The ground on which the application was made was that these machines, though they belonged to the firm, were removed by opponent No. 4 from the premises of the firm to his own house and that the other property of the firm had been concealed by the partners. On 2-3-1959, the Court passed an order to the effect that the two machines be attached before judgment unless any of the opponents furnished security for the claim in suit. Apparently, no security was furnished and therefore on 4-3-1959 the machines were attached. On 6-3-1959, Manubhai, opponent No. 4, made an application under S. 60(1)(b) of the Code read with O. 38, R. 6 thereof for releasing the property rom attachment. In that application he also offered to furnish security to the extent of Rs. 1,400/-. An ex parte order was passed on this application by the learned Judge of the Court below to the following effect:

'Machines to be returned to applicant. Attachment to continue. Security to be taken before machines are returned.'

No security was furnished by Manubhai. On 16-3-1959, the matter came up before the Court again. On that date. Manubhai filed his reply to the application of the applicant for attachment before judgment. In that reply he sought releasing of the attachment. He denied that opponents 2-5 are partners of the firm, opponment No. 1. He also specifically denied that he had in any way concealed , disposed of or removed any goods belonging to the firm. As regards the two embroidery machines he contended the they belonged to him exclusively and that after the severance of his connection with the business of the opponent No. 2, who is a brother of the applicant, he removed them to his own house and that he was entitled to do so under law because they belonged to him alone and not to the alleged firm. He further contended that he is an artizan, that those mchines are tools of an artizan and that therefore they are not liable to be attached under S. 60(1)(b) of the Code. No enquiry was held by he learned Judge on any of the points in dispute between the parties but he passed an order on 24-3-1959 releasing the machines from attachment. In his order he has framed the following points for determination:

(i) Does applicant prove that he has a prima facie case?

(ii) Does he prove that N. As, are attempting to remove the property out of the jurisdiction of this Court?

(iii) Does he prove that the property is being disposed of or removed out of the jurisdiction of this Court with a view to obstruct or delay the execution of the decree that may be passed against them? and

(iv) Is the attached property liable to attachment?

He decided the first three points in the affirmative but the fourth in the negative.

(3) Mr. Imdad Ali for the applicant, contends that the learned Judge has not framed all the necessary points for determination because some important matters on which the parties were at issue were not included in them. He also says that it was not open to the learned Judge to decide the application without giving an opportunity to the parties to aduce evidence in support of their respective contentions. I agree with Mr. Imdad Ali. The Court must realise that even interlocutory matters have to be decided after giving an opportunity to the parties to aduce the necessary evidence. It is also necessary for the Court to bear in min all the contentions of the parties before deciding an interlocutory application. Now, here we find that the parties are at issue on the question as to whether there was at all a partnership and whether one manubhai exclusively. These points are relevant because before making an order releasing the property on the ground that they are tools of an artisan the Court has to come to the conclusion that they belong to the person who is asking for their release. A firm is not an artizan, though individual members of a firm may be artizans. The protection given by S. 60(1)(b) is to individuals and not to firms because the whole idea is that persons who carry on their livelihood as artisans or as agriculturists should not be prevented from eking out their existence. The same cannot however be said about firms. A firm does not individually work as an artisan or as an agriculturist.

(4) In this connection I may refer to some decisions of the High Court in India. In Nihal Singh v. Siri Ram, AIR 1939 Lah 388, the question waas as to what was meant by the word `agriculturist' and in this connection they also considered what is the meaning of the word `artizan'. Dalip Singh J., who delivered the judgment of the Court observed:

'Reading clause (b) of the section it appears to me clear that the juxtaposition of the word agriculturist'along with the word `artizan' implies a person who occupies himself in tilling the soil and whose livelihood depends on this tilling of the soil. It could hardly be said that the term `artizan' meant merely a person who engaged himself in the practice of some handicraft without reference to the the fact that the person maintained himself by the practice of that handicraft. Otherwise, a man who made a hobby of some handicraft might say that for the purposes of this section his tools were exempt from attachment because he was an artizan. But the meaning of `artizan' is not in this section clearly a person who merely engages in some particular handicraft for pleasure or as a hobby or even as an additional source of income, but it means a person who employs himself in a handicraft personally and who depends for his living essentially on the proceeds derived from that handicraft.''

It that is the meaning of the word `agriculturist' then it follows that it is limited to an individual and cannot be extended to a body of individuals, that is to a firm. In Karam Chand Sood v. Official Receiver. Simla, ILR 15 Lah 26 : AIR 1933 Lah 936, the same learned Judge pointed out that the word `artizan' occurring in S. 60(1)(b) implies a handicraftman, viz, one who makes certain things as part of his trade or calling. If this view is correct then it would follow that it applies only to an individual and not to a firm. Then we have a decision of the Madras High Court in Ramachandra Ayyar v. Sesha Ayyangar. AIR 1943 Mad 523, where Horwill J. held that if a person employs a number of artisans to work for him and gives tools for that purpose, he is not himself an artisan but an employer of labour who would not be entitled to be benefit of the section. Such being the law, it is essential to ascertaion here whether these two machines belong exclusively to Manubhai as claimed by him or to the partnership firm. Now, Mr. Belekar says that from the accounts extracts of which have been filed in this case, it would appear that some amounts alleged to have been advanced by the applicant have been debited to Manubhai only and therefore the liability which is sought to be enforced in this suit must be regarded as being that of Manubhai only. For one thing, this aspect of the matter has not been considered by the Court below. Apart from that, what is pertinentto note is that Manubhai is not entitled to have the machines released unless he shows that they are his exclusive property. The applicant's assertion in this suit is that Manubhai is one of the partners and he used to hand over advance money to him in that capacity. Therefore if the applicant establishes his contention he will be able to hold Manubhai liable as a partner for the amounts so advanced by him. But that again has little bearing on the question whether the property should be released from attachment on the ground claimed by Manubhai.

(5) Since the matter has not been enquired into properly by the Court below. I set aside its order releasing the two machines from attachment and direct the Court to enquire into the matter afresh in the light of the aforesaid observations.

(6) Before parting with the case I would like to mention the offers which were made by Mr. Imdad Ali on behalf of the applicant. He said that if Manubhai I willing to deposit in Court Rs. 1000/- he is prepared not only to return the machines to him but also to undertake not to withdraw the amount but also to pay interest on that amount at six per cent per annum till the decision of the suit in case the suit is dismissed against Manubhai. He further offered to release one machine if Manubhai instead of depositing Rs. 1000/- deposits Rs. 500/- in the Court below and agrees to abide by similar conditions. He made a third offer to the effect that if Manubhai furnished security either for Rs. 500/- or Rs. 1000/- he was prepared to release oen or two machines as the case may be. It will be open to Manubhai to take advantage of these offers if the likes.

(7) I allow the application, make the rulr absolute but direct that the costs in this Court shall be borne as incurred.

(8) Application allowed.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //