Skip to content


Abdul Rashid Vs. Firm Wajid Ali Abdi Ali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 1183 of 1974
Judge
Reported inAIR1985All239
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rules 122 and 123
AppellantAbdul Rashid
RespondentFirm Wajid Ali Abdi Ali
Appellant AdvocateM.A. Qadeer and ;Ramesh Tandon, Advs.
Respondent AdvocateN.A. Kazmi, ;G.P. Bhargava and ;A.N. Bhargava, Advs.
DispositionAppeal dismissed
Excerpt:
civil - execution - order 21 rules 122 and 123 of code of civil procedure, 1908 - attached property of judgment debtor in custody of supurdgar - stage in furtherance of execution - liability does not change - judgment debtor remains liable for satisfaction of the decree until the same has been duly satisfied - satisfaction has to be recorded by the court. - - this execution was dismissed as unsatisfied on 17th december, 1966. a fresh precept was obtained by the decree-holder from the court at azamgarh and again a fresh execution was started in the court at fatehpur for the realisation of rs. rules 122 and 123 empower the court to make an arrangement for the safe custody of attached immovable property and for this purpose the court can authorise the attaching officer to place one or..........liability of the judgment-debtor would stand substituted against the supurdar after the judgment-debtor's property is attached in execution of the decree and is handed over to the supurdar for custody by the attaching officer. 2. the relevant facts are that a compromise decree was obtained on 29th august, 1959 from the court of the munsiff, azamgarh. since the judgment-debtor was a resident of district fatehpur, a precept was obtained from the executing court at azamgarh for execution in district fatehpur in 1962 and the decree-holder succeeded in securing attachment of the harvested crop belonging to the judgment-debtor on 12th april, 1962. this resulted in three objections being filed under order 21 rule 58 c.p.c.; but all of them were dismissed by 15th may, 1963. this in turn gave.....
Judgment:

N.N. Mithal, J.

1. This is an execution second appeal by the judgment-debtor and the sole question that is involved in the appeal is whether the liability of the judgment-debtor would stand substituted against the Supurdar after the judgment-debtor's property is attached in execution of the decree and is handed over to the Supurdar for custody by the attaching officer.

2. The relevant facts are that a compromise decree was obtained on 29th August, 1959 from the Court of the Munsiff, Azamgarh. Since the judgment-debtor was a resident of district Fatehpur, a precept was obtained from the executing Court at Azamgarh for execution in district Fatehpur in 1962 and the decree-holder succeeded in securing attachment of the harvested crop belonging to the judgment-debtor on 12th April, 1962. This resulted in three objections being filed under Order 21 Rule 58 C.P.C.; but all of them were dismissed by 15th May, 1963. This in turn gave rise to three suits under Rule 63, but they were also dismissed on 17th October, 1964. Second Appeals were filed, two of which were dismissed and only one was accepted on 17th July 1965. In view of the decision in Second Appeal, part of the attached crops was released from attachment. It would be pertinent to note here that right from the date of attachment till the date of decision of second appeal, the execution remained stayed. Ultimately after the disposal of the appeals, the decree holder took further steps for putting to sale the crop which still remained under attachment. During the execution proceedings, the crop was not produced by the Supurdar and he raised an objection that the same has been destroyed duo to putrefaction. The executing Court held that the crop was worth Rs. 485/- and to that extent the Supurdar was held liable to satisfy the decree. Subsequently the decree-holder started fresh execution against the Supurdar for the realisation of Rs. 485/- determined by the Court as the price of the crop. This execution was dismissed as unsatisfied on 17th December, 1966. A fresh precept was obtained by the decree-holder from the Court at Azamgarh and again a fresh execution was started in the Court at Fatehpur for the realisation of Rs. 1351/-. In response to the notice, judgment-debtor raised an objection that since the crop belonging to him valued at Rs. 1700/- had been attached it must be deemed that so much money had been paid by him towards the decree. He also raised an objection that the judgment-debtor was not responsible for the loss of or deterioration of the crop which had been initially attached and he could not be made liable for payment of the amount under the decree. This objection found favour of the executing Court who dismissed the execution application against which an appeal was filed. The appellate Court took the view that the decree-holder was equally not responsible for the loss and deterioration of the crop attached in execution of the decree and as such he was entitled to seek execution of decree against the judgment-debtor. In his view, since the decree-holder was not responsible for the same, he was entitled to execute the decree and as such the appeal was allowed. It is against this decision that the present second appeal has been filed.

3. Having heard the learned counsel for the parties, I find that the appeal deserves to be dismissed. Rule 44 Order 21, C.P.C. deals with attachment of agricultural produce. It prescribes the manner in which the attachment of such produce is to be effected and on compliance thereof the produce shall be deemed to have passed into the possession of the Courts. By means of an amendment in U. P. a number of Rules i.e. Rules 106-A to 140 have been added under Order 21, C.P.C. Rules 122 and 123 empower the Court to make an arrangement for the safe custody of attached immovable property and for this purpose the Court can authorise the attaching officer to place one or more persons in special charge of such property. The person who takes such property in his custody is usually known as Supurdar and he undertakes to produce the property as and when demanded by the Court. There is no dispute in the present case that a Supurdar had been appointed and the attached crop had been given in his custody. The question arises as to whether on giving of such property in the custody of Supurdar, the liability of judgment-debtor completely ceases. There does not appear to be any reason to think so. The judgment-debtor remains liable for satisfaction of the decree until the same has been duly satisfied and satisfaction is to be recorded by the Court as required by law. So long as the decree is not satisfied in the aforesaid manner, it remains executable against the judgment-debtor. Even if any property belonging to the judgment-debtor that has been attached in execution of the decree is given in the Supurdagi or custody of a Supurdgar, it is only a step in furtherance of the execution but does not involve a change in liability, may be that the liability in respect of property entrusted to the custody of the Supurdgar may make the Supurdgar also liable to that extent. However on account of such liability being fastened to the Supurdgar the initial liability of the judgment-debtor under the decree does not cease to exist.

4. Learned counsel for the appellant has referred to the case in Shakir Hussain v. Chandoo Lal : AIR1931All567 . The aforesaid case is not, however, helpful inasmuch as it only decided about the nature of liability of Supurdgar and the Court held that as a surety, he is liable to be proceeded against under Section 145 C. P.C. To the same effect is the decision in Mathura Dass v. Hari Shanker : AIR1949All306 . In Bachhraj Dugar v. Lalchand AIR 1962 Assam 23 also the attached property had been destroyed by fire and the question arose whether it was possible for the surety to plead that he was not liable as the goods had been destroyed by an act of God. None of these cases, therefore, would help the appellant in any manner. Learned counsel then referred to Teeka v. State of U. P. : 1961CriLJ859 . There also the question was quite different. It dealt with the question whether the Supurdgar was an officer of the Court and the matter arose out of criminal proceedings.

5. Lastly the learned counsel relied upon the case of Lokman Das v. Ishwari Singh 1974 All LJ 362 where a learned single Judge of this Court was dealing with the question as to whether a decree could be executed against a surety also. In that case, certain crop belonging to the judgment-debtor had been attached and were handed over to the respondent as surety. As the decree could not be satisfied and the attachment was continuing, the judgment-debtor applied to the Court under Section 145 C.P.C. to proceed against the surety as he had allegedly misappropriated the attached property and was not making it available for the satisfaction of the decree. In para 4 of the Report, the Court, while dealing with the provisions of Section 145, C.P.C., observed that a decree can be executed against the surety also if conditions laid down in Section 145 C.P.C., exist. The Court further observed as under :

'In effect this provision creates a new judgment-debtor making the liability of the surety coextensive with the liability of the judgment-debtor. It is the judgment-debtor's property which in execution proceedings is placed by the Court for a temporary period in the hands of the surety and the same continues to be the property of the judgment-debtor. As such, the decree should always be executable against it. Section 145, C.P.C. only permits such execution'.

6. From the above it would be apparent that with the aid of Section 145, C.P.C., not only can the decree be executed against the judgment- debtor but also against the Supurdgar to the extent of the property given in his custody in execution of the decree. It, however, does not follow that the judgment-debtor's liability ceases once his property has been attached and given in the custody of the Supurdgar.

7. Learned counsel has not been able to show me any provision of law which may go to show that the liability of the judgment-debtor shall so cease. In fact after a decree has been passed, it continues to be executable against the judgment-debtor until its satisfaction is recorded in accordance with the manner as provided by Order 21 of the Code. It is quite different if the judgment-debtor also may be entitled to proceed against the property given in the custody of the Supurdgar in appropriate cases. That enabling provision, however, neither takes away the right of the decree-holder to execute his decree nor substitutes the Supurdgar for the judgment-debtor, what really happens in such a case is that in addition to the liability incurred by the judgment-debtor under a decree, the whole or a part of it also attaches to the Supurdgar to the extent of the liability undertaken by him at the time of accepting custody of attached goods. Thus, it only enlarges the right of the decree-holder to proceed against the Supurdgar also while' retaining his right against the judgment-debtor.

8. In the circumstances, I find that the view taken by the court below is right and the decree sought to be executed can be executed against the judgment-debtor in spite of the fact that his property had been earlier attached and given in the custody of the Supurdgar.

9. The appeal thus fails and is accordingly dismissed with costs.


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