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Genda Mal Vs. Lala Sukhdarshan Lal - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in164Ind.Cas.200
AppellantGenda Mal
RespondentLala Sukhdarshan Lal
Cases ReferredShakir Hussain v. Chandoo Lal
Excerpt:
.....117, scope of--supurdar's responsibility, nature and extent of--'surety' in section 145, scope of--supurdar, if liable as surety--section 151, if confers special jurisdiction--inherent power to pass orders against persons not parties to suit, if exists--precedent--single judge must follow full bench ruling though he can entertain doubt on question of law. - - 2. on an application being made to the court, the execution court held that the supurdar was liable for the value of the properties entrusted in him, and passed an order against him to make good the loss. on appeal the lower appellate court came to the conclusion that as soon as the ex parte decree was set aside the original attachment came to an end and the supurdar was at liberty to do what he liked with the properties in spite..........which consisted of cattle and grain to the appellant, genda mal, who agreed to take charge of the attached properties supurdar and executed a supurdnama under which he undertook to restore the properties whenever called upon by the court or the court amin. this happened on february 4, 1932. later an application was filed by the judgment-debtor to have the ex parte decree set aside, and on april 20, 1932, the ex parte decree was set aside, the case was restored to its original number on the file. but on the same date the decree-holder applied for attachment before judgment, and the court passed an order that the properties should be held to be attached. the appellant, genda mal, on june 4, 1932, handed over the properties in his custody, not to chaman, nor to the decree-holder, nor even.....
Judgment:

Sulaiman, C.J.

1. This is a Letters Patent appeal arising out of an execution proceeding. An ex parte money decree was obtained, and an execution of its certain properties alleged to belong to the judgment-debtor, Chaman, were attached by an order of the execution Court. An Amin went to the spot and made the attachment and handed over the custody of these properties which consisted of cattle and grain to the appellant, Genda Mal, who agreed to take charge of the attached properties supurdar and executed a supurdnama under which he undertook to restore the properties whenever called upon by the Court or the Court Amin. This happened on February 4, 1932. Later an application was filed by the judgment-debtor to have the ex parte decree set aside, and on April 20, 1932, the ex parte decree was set aside, the case was restored to its original number on the file. But on the same date the decree-holder applied for attachment before judgment, and the Court passed an order that the properties should be held to be attached. The appellant, Genda Mal, on June 4, 1932, handed over the properties in his custody, not to Chaman, nor to the decree-holder, nor even to the Amin, but to a third objector, who had filed objections under Order XXI, Rule 58, and whose objections had not till then been decided. Had the supurdar made any enquiries from the Court he would have at once found out that although the ex parte decree was set aside, there was a fresh order for the attachment of the properties. He would have also ascertained that the properties had been attached as belonging to Chaman, and that the objections of the objector had not yet been disposed of, He, however, took upon himself the responsibility of handing over the properties to the objector as he alleges.

2. On an application being made to the Court, the execution Court held that the supurdar was liable for the value of the properties entrusted in him, and passed an order against him to make good the loss. On appeal the lower Appellate Court came to the conclusion that as soon as the ex parte decree was set aside the original attachment came to an end and the supurdar was at liberty to do what he liked with the properties in spite of the fact that there was another order of attachment and in spite of his previous undertaking. On appeal a learned Judge of this Court has come to a different conclusion and has restored the order of the first Court with a slight modification. So far as the question of the liability of the supurdar is concerned, we agree with the view expressed by the learned Judge that he must be liable.' Under Order XXI, Rule 117, when livestock is attached in execution of a decree, it shall ordinarily be left at the place where the attachment is made either in custody of the judgment-debtor on his furnishing security, or in that of some landholder or other respectable person willing to undertake the responsibility of its custody and to produce it when required by the Court. So far as other movable properties are concerned, the attaching officer subject to the approval of the Court has to make Such arrangements as may be most convenient and economical. The supurdar takes charge of the property as if it had belonged to the defendant judgment-debtor and had been attached by the Court and had been entrusted to him for safe custody on the distinct understanding that he had to restore it or pay its price whenever called upon by the Court or the Court Amin. It is no business of the custodian to decide for himself whether the attachment has ceased or that , the execution proceeding is struck off, or whether the property belonged to the judgment-debtor or to the objector who had put forward his claim. His responsibility arises under the written undertaking given by him as well as under Order XXI, and he cannot exonerate himself from the liability imposed on him on the ground that he in good faith handed over the property to a third person. Even assuming that the attachment came to an end as soon as the ex parte decree was set aside, the supurdar ought not to have believed this to have Happened on mere information received from a third party. It was his duty to obtain the instructions of the Court before handing over the properties which had been given under his charge. The liability of a supurdar has been made clear in Shakir Hussain v. Chandoo Lal : AIR1931All567 . The learned Judge of this Court, however, has gone on to express his own opinion that the view of the Full Bench was not correct so far as the liability of the custodian as a surety is concerned. It is open to a single Judge of this Court to entertain a doubt on any question of law, but he is bound to follow the Full Bench ruling and the operative portion of his order must be in strict accordance with the ruling of the Full Bench and should in no way deviate from it. In the case referred to above Mukerjee, J., at p. 870 Pages of (1931) A. L.J.--[3d.] held distinctly that the case of supurdar came tinder Section 145, Civil Procedure Code, which was applicable. Indeed he went further and suggested that it would not be clear for what reason it could be said that Section 145 was not applicable. Boys, J. also at p. 873* remarked that apart altogether from other considerations there is no reason why in suitable circumstances Section 145 should not be applicable.

3. One of us who was a member of the Bench on p. 874* held that Section 145 was applicable. Under Section 145 when a person has become liable as a surety for the restitution of any property taken, or for the fulfilment of any condition imposed on him under an order of the Court in an execution proceeding, the decree may be executed against him as if he were a person who had rendered himself personally liable. The essence of an attachment order is that the property should come under the control of the Court and any transfer or disposal of it should be void and subject to the attachment. The properties in this case had been attached as those belonging to the defendant, and they had been taken in execution of a decree against him, and the supurdar had come forward as a person who undertook to restore the properties and made himself liable. His undertaking was tantamount to an undertaking that the properties would not be transferred or disposed of without the permission of the Court and would be restored to the Court. The word 'surety' in Section 145 is used in a wider sense and applies even to cases where there may be no undertaking for the payment of money. The view of the Full Bench that the supurdar is liable as a surety under Section 145 must prevail. The, point which was emphasised in the Full' Bench but has been overlooked by the learned Judge is that Section 145 speaks of a person who has become 'liable as surety' and does not say 'who is a surety himself.

4. The learned Judge has thought that Section 151 applies and has given effect to the jurisdiction of the Court under that section., It is a mistake to suppose that Section 151 confers any special jurisdiction on Civil Courts. It is merely a saving clause which saves inherent power of the Court which may exist independently of that section from being limited by the provisions of the Code. Ordinarily there is no inherent power to pass orders against the persons who are not parties to the suit but for the applicability of Section 145 it may be difficult to proceed against a supurdar unless he could by some stretch of the imagination be considered to be an officer of the Court. We accordingly direct that the order of the execution Court should be considered as an order passed under Section 145, Civil Procedure Code, and with these observations we dismiss the appeal with costs.


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