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ismail Vs. Firm Johri Mal-sital Prasad - Court Judgment

LegalCrystal Citation
Subject Civil
CourtAllahabad
Decided On
Reported inAIR1937All652
Appellantismail
RespondentFirm Johri Mal-sital Prasad
Excerpt:
- .....february 1933. the opposite party thereafter obtained an ex parte decree for rs. 700 odd against mohammad ismail, and in execution of his aforesaid decree he attached the preliminary decree of his judgment-debtor mohammad ismail. subsequently the opposite party applied in the court of the munsif for preparation of a final decree in pursuance of the aforesaid preliminary decree of mohammad ismail. it was objected that a preliminary decree is not attachable, but that objection has been overruled by the court below. mohammad ismail has come to this court in revision and the same point is taken before us. on his behalf it is argued by learned counsel that section 60, civil p.c., must be read with order 21, rule 53, which provides for attachment of decrees, and it is contended that the.....
Judgment:
ORDER

1. Mohammad Ismail, the applicant in this case, was an objector in certain execution proceedings. He instituted a suit for the realization of the unpaid consideration under a mortgage bond and he obtained a preliminary decree upon an arbitration award for a sum of Rs. 2,000 odd. This decree was dated 7th February 1933. The opposite party thereafter obtained an ex parte decree for Rs. 700 odd against Mohammad Ismail, and in execution of his aforesaid decree he attached the preliminary decree of his judgment-debtor Mohammad Ismail. Subsequently the opposite party applied in the Court of the Munsif for preparation of a final decree in pursuance of the aforesaid preliminary decree of Mohammad Ismail. It was objected that a preliminary decree is not attachable, but that objection has been overruled by the Court below. Mohammad Ismail has come to this Court in revision and the same point is taken before us. On his behalf it is argued by learned Counsel that Section 60, Civil P.C., must be read with Order 21, Rule 53, which provides for attachment of decrees, and it is contended that the decree contemplated in Rule 53 is an executable decree and does not include a preliminary decree which as it stands is not executable. This argument is based on the words 'proceed to execute the attached decree' in Clause 2 and on the words 'entitled to execute such attached decree' in Clause (3) of Rule 53. Clauses (1) to (3) of Order 21, Rule 53, are concerned with the method of attachment of decrees for the payment of money and decrees (i.e. final decrees) for sale in enforcement of a mortgage or charge, and they confer upon the holder of the decree sought to be executed the power to execute the attached decree. In the case of other decrees, Clause (4) prescribes the manner of attachment, but is, silent as to how they should be realized. There can be no doubt that a preliminary decree is property within the meaning of Section 60, Civil P.C. A preliminary decree may not be executable as it stands, but in our opinion there was nothing to prevent the opposite party from attaching this preliminary decree as being property of his judgment-debtor within the meaning of Section 60.

2. We are fortified in our view by a decision of a Bench of the Calcutta High Court in Mono Mohan v. Kali Kinkar Chakravarty : AIR1935Cal751 where it was held that a preliminary decree for accounts was a saleable property over which the decree-holder has a disposing power which he may exercise for his benefit and that such decree was liable to attachment under Section 60, Civil P.C. It is pointed out by learned counsel for the applicant that in that case the provisions of Order 21, Rule 53, were not considered; but the reason for this is obvious inasmuch as Rule 53 is only concerned with decrees for payment of money and decrees for sale in enforcement of a mortgage. The question remains how is the attached decree to be realized? Since it is not a decree such as is contemplated in Order 21, Rule 53(1), Civil P.C. but since it is nevertheless property within the meaning of Section 60, the correct procedure is for the Court to sell it under Order 21, Rule 64. We accordingly allow this application to the extent that we set aside the lower Court's order for preparation of a final decree and we direct that the procedure laid down in Order 21, Rule 64, and the succeeding rules be followed. In the circumstances we make no order as to costs.


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