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Madho Prasad and anr. Vs. Pearey Lal and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported inAIR1921All220; 62Ind.Cas.719
AppellantMadho Prasad and anr.
RespondentPearey Lal and anr.
Excerpt:
.....of officers of the court leaving properties in the custody of respectable persons after taking security from them had better been..........of the petitioners by the amin, and they executed a security bond on plain paper agreeing to produce the moveables when the court demanded them or to pay the price thereof. the amin, who was in charge of the execution proceedings, thereupon left the property with them and filed the agreement executed by them in court. when the petitioners were asked to produce the property, they stated their inability to do so on the ground that one khalil, an agent of the judgment-debtors, had taken it away. the applicants, having given an express undertaking to the effect that they would produce the moveables when required by the court to do so, cannot be allowed to plead that khalil had taken away the property. the terms of the agreement clearly show that the petitioners made themselves.....
Judgment:

Gokul Prasad, J.

1. The only point raised before me is whether the decree-holders should in execution of their decree proceed against the applicants by an application to the Execution Department, What happened was that the decree-holders put in an application for execution and in execution of the decree certain moveables belonging to the judgment-debtors were attached. They were put in the custody of the petitioners by the Amin, and they executed a security bond on plain paper agreeing to produce the moveables when the Court demanded them or to pay the price thereof. The Amin, who was in charge of the execution proceedings, thereupon left the property with them and filed the agreement executed by them in Court. When the petitioners were asked to produce the property, they stated their inability to do so on the ground that one Khalil, an agent of the judgment-debtors, had taken it away. The applicants, having given an express undertaking to the effect that they would produce the moveables when required by the Court to do so, cannot be allowed to plead that Khalil had taken away the property. The terms of the agreement clearly show that the petitioners made themselves personally liable to produce the articles which had been attached in execution of the decree and which would have gone to satisfy the decree in part or in whole. In ay opinion this case clearly falls under the general rule laid down in Section 145 of the Code of Civil Procedure and I think the Court below was perfectly justified in proceeding against them in the execution proceedings. In my opinion if the law is supposed to mean something else than what has been stated above, Section 145 had better not been enacted and the procedure of officers of the Court leaving properties in the custody of respectable persons after taking security from them had better been abandoned. I think that Order XXI, Rule 43, only makes distinct the liability of the Amin so far as the Court is concerned. It does not affect in any way the liability of a person who expressly takes charge of property taken in execution to either the Court or to the decree-holder. Rule 128 only confirms a practice which has been accepted for a long time and which is really one in the interests of the judgment debtors and to prevent them from unnecessary disgrace and harassment. In my opinion the view taken by the Court below in this case was correct. I dismiss the application in revision with costs.


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