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Shiv NaraIn Sharma Vs. Shri Lal Ram and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Case NumberEx. Second Appeal No. 461 of 1974
Judge
Reported inAIR1981All365
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 58 - Order 38, Rule 8
AppellantShiv NaraIn Sharma
RespondentShri Lal Ram and anr.
Appellant AdvocateR.P. Goel, Adv.
Respondent AdvocateM.S. Singhal, Adv.
DispositionAppeal allowed
Excerpt:
civil - objections to attachment order - order 38 rule 5 and order 28 rule 58 of code of civil procedure,1908 - order for attachment of movable property before judgment - petitioner filed objections - stating himself as owner not the judgment debtor - ownership not clear - courts order of attachment not valid - held, should have asked for security of decreed amount instead of taking custody, by attachment order. - .....sharma who claims to be the owner of the property attached. the property in dispute is a bus and shiv narain sharma claims to be the owner of the bus which was being run under the permit of the judgment-debtor. the bus was being attached under order 38, rule 5 during the pendency of the suit itself. objections were filed by shiv narain sharma which are still pending in the nature of objections under order 21, rule 58, c.p.c. by order dated 16-8-73 a receiver was ordered to be appointed to run the bus and deposit the income of the bus in the court. an appeal was filed by shiv narain sharma which had been dismissed by the court below on 31-1-74. from the judgment of the lower appellate court it is clear that the objections of shiv narain sharma under order 38, rule 8, c.p.c. in the.....
Judgment:

K.M. Dayal, J.

1. The present Execution Second Appeal has been filed by Shiv Narain Sharma who claims to be the owner of the property attached. The property in dispute is a bus and Shiv Narain Sharma claims to be the owner of the bus which was being run under the permit of the judgment-debtor. The bus was being attached under Order 38, Rule 5 during the pendency of the suit itself. Objections were filed by Shiv Narain Sharma which are still pending in the nature of objections under Order 21, Rule 58, C.P.C. By order dated 16-8-73 a Receiver was ordered to be appointed to run the bus and deposit the income of the bus in the court. An appeal was filed by Shiv Narain Sharma which had been dismissed by the court below on 31-1-74. From the judgment of the lower appellate Court it is clear that the objections of Shiv Narain Sharma under Order 38, Rule 8, C.P.C. in the nature of objection under Order 21, Rule 58 are still pending and the ownership of the bus is to be determined. The decree-holder did not apply for satisfaction of the decree fromthe profits of the bus by appointment of the Receiver but a prayer for appointment of Receiver had been made in the instant case to prevent the misappropriation of the income of the bus.

It is to be noted that the property in dispute is a movable property and a machine. In case of attachment of a movable property it has to be taken out of possession of an individual and placed in possession of the court. The possession of supurdar is possession of the Court. There is yet another averment in the case. The bus was being run by the supurdar and the income was being misapproriated. The supurdar may be directed to deposit the income in the Court. That cannot be permitted unless the ownership of the bus was determined, it could not be operated by the Supurdar as there would be depreciation and consequent fall in the value of the bus. In the circumstances the order of the court below that the Supurdar may be permitted to run the bus and deposit the profits in the court, cannot be upheld specially in view of the fact that the decree-holder has not sought satisfaction of the decree from the profits of the bus by appointment of Receiver.

2. A more reasonable and appropriate course in such case would have been to give the bus in the custody (supurdigi) of person from whom it was attached and from him security for the decretal amount or value of the bus, as the court may deem fit, may be taken. In any case, the bus cannot be permitted to be run by the Receiver as ordered by the court below. In case the bus is being run, its valuation may considerably go down and the decree-holder may also be prejudiced if the bus is ultimately sold.

3. In these circumstances, the present appeal is to be allowed and the orders passed by the lower appellate Court and the execution court appointing a Receiver are quashed. The lower appellate Court may deal with the property as observed above and in accordance with law. The application for release of the bus or appointment of the Receiver may be decided afresh after affording reasonable opportunity of hearing to the parties. Parties are directed to bear their own costs.


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