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Radha Kishen Beni Prasad Vs. P.L. Jaitly and Co. and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtAllahabad
Decided On
Reported inAIR1935All343
AppellantRadha Kishen Beni Prasad
RespondentP.L. Jaitly and Co. and ors.
Excerpt:
- interpretation of statutes definition clause: [markandey katju & h.l. dattu, jj] meaning given to an expression in one statute cannot be applied to another statute. - , made certain representations to the government asking that the license should be renewed, but in that attempt they were unsuccessful. we have heard the learned counsel on both sides and we are clearly of opinion that the view taken by the learned subordinate judge is not correct. in the present case as no attachment had been made, the learned subordinate judge was clearly wrong in permitting objections to be filed. but they can insist that their interest should be safe-guarded against any subsequent dealings by the judgment-debtors and apply for an order of attachment.rachhpal singh, j.1. this is a revision application by the decree-holders arising out of execution proceedings. the decree-holders obtained a decree against messrs. p.l. jaitly & co., and the budaun electric supply co., for a sum of rs. 54,211-10-9. this decree was passed by the calcutta high court. the decree-holders got the decree transferred to budaun district and then put in an application for execution in the court of the subordinate judge of budaun. the prayer was that the property owned by the budaun electric supply co., mentioned in a list attached to the application for execution should be attached. the court ordered that notices should be issued to both the judgment-debtors. it appears that one mr. raghunath prasad tandon came forward and filed objections and pleaded that the.....
Judgment:

Rachhpal Singh, J.

1. This is a revision application by the decree-holders arising out of execution proceedings. The decree-holders obtained a decree against Messrs. P.L. Jaitly & Co., and the Budaun Electric Supply Co., for a sum of Rs. 54,211-10-9. This decree was passed by the Calcutta High Court. The decree-holders got the decree transferred to Budaun District and then put in an application for execution in the Court of the Subordinate judge of Budaun. The prayer was that the property owned by the Budaun Electric Supply Co., mentioned in a list attached to the application for execution should be attached. The Court ordered that notices should be issued to both the judgment-debtors. It appears that one Mr. Raghunath Prasad Tandon came forward and filed objections and pleaded that the property of the Budaun Electric Supply Co., should not be attached for the reasons given by him in his application. The decree-holders opposed this application. The plea taken by the decree-holders was that as no attachment had taken place. Mr. Tandon was not entitled to file any objection and therefore those objections were premature. The learned Subordinate Judge allowed the objections on the ground that it was a peculiar case and the circumstances were somewhat extraordinary. Against that order the decree-holders have preferred this revision application.

2. Before we proceed to discuss the question about the correctness or otherwise of the order passed by the Court below, it is necessary to state here very briefly the circumstances under which Mr. Tandon came forward with his objections. It appears that Messrs. Jaitly & Co. made an application to the Local Government asking that they should be granted a license for supplying electric energy to the town of Budaun. This application was granted and a license was issued to Messrs. Jaitly & Co. This firm started a company styled 'The Budaun Electric Supply Co. Ltd.' Messrs. Jaitly & Co., became its managing agent. Somehow or other the plant could not be received in Budaun within time, and therefore the Government revoked the license which had been issued by them. The firm of Messrs. Jaitly & Co., made certain representations to the Government asking that the license should be renewed, but in that attempt they were unsuccessful. Under some arrangements the firm styled 'Messrs. Kishore Chand Shiva Charan Lal' advanced a large sum of money and undertook to carry on the business of the Electric Supply Co. This arrangement was made by this firm with Messrs. Jaitly & Co., under which a large sum of money was advanced. Eventually the Government decided that the license should be granted to the firm of Messrs. Kishore Chand Shiva Charan Lal. Negotiations are still going on and the proposed sale of the assets of the Budaun Electric Supply Co., has not yet been made in favour of the firm of Kishore Chand Shiva Charan Lal. Mr. Raghunath Prasad Tandon had been appointed the local manager of the Budaun Electric Supply Co. by Messrs. Jaitly & Co. With the permission of the Government he is now carrying on the business there. As no sale has been made as yet in favour of the firm Messrs. Kishore Chand Shiva Charan Lal, their position is that of creditors of the company to whom they have advanced some money.

3. The question for our consideration is whether the learned Subordinate Judge was right in allowing the objections of Mr. Tandon. We have heard the learned Counsel on both sides and we are clearly of opinion that the view taken by the learned Subordinate Judge is not correct. Admittedly the decree-holders obtained a decree against the Budaun Electric Supply Co., and they were entitled to execute that decree. They had made an application asking for the attachment of the property belonging to one of their judgment-debtors, that is, the Budaun Electric Supply Co. The Court was bound to allow this prayer and to attach the property. If the property did not belong to the judgment-debtor, then it was open to the person claiming to be the owner of the property to come forward and file objections. The only method by which a third person can object to an; attachment is to file objections after the attachment had been made. He can come to Court and file objections under the provisions of Rule 58, Order 28. Civil P.C. There is nothing in the Civil Procedure Code, which allows as third party to come forward with objections before an attachment has been made. The reason is very obvious. So long as an attachment has not been, made, no one can come forward and say that anything has been done which gives him a cause of action to come to Court. It is only after the property has been attached in pursuance of an application for attachment made by the decree-holder that a third party would have the right to come forward and say that the property should not have been attached on the ground that it belonged to him and not to the judgment-debtor. At this stage it is altogether unnecessary to consider what the position of the opposite parties is. They might be mortgagees or they might be debenture-holders or they might be purchasers of the assets of the Budaun Electric Supply Co. This, question can only be determined after an attachment has been made. If then the objectors come forward, they will be required to show what their title is and then the applicants will have the right to show on what ground they seek to enforce the attachment against the attached property. Then the matter will be judicially determined. In the present case as no attachment had been made, the learned Subordinate Judge was clearly wrong in permitting objections to be filed. They should have been thrown out on the ground that there had been no attachment and therefore the objectors had no locus standi to come forward and make an application to the Court. The learned Subordinate Judge, as would appear from his order, was aware of this difficulty. In his order he states that it is true that

ordinarily an objector is to come to Court after the attachment of the property has taken place, but the present matter is not so ordinary.

4. The rule of law is, as we have already explained, that objections can only be filed after an attachment has taken place and we have not been shown any law or decided cases in which it might have been laid down that in certain cases it may be open to an objector to come and file his objections before an attachment has taken place. The reason which led the learned Subordinate Judge to allow the objections is mentioned by him in his judgment and it is that nobody can work the undertaking who is not permitted to do so by the Local Government. He remarks that if the attachment were made:

it might be that the undertaking would have come to a standstill thus causing great inconveinence to the general public.

5. We do not think that he was right in taking this view. Nobody suggests in this case and no occasion has arisen as yet for making a suggestion of this kind that the decree-holders should be permitted without the permission of the Local Government to carry on the business of the Budaun Electric Supply Co., nor is there any question of public suffering or any inconvenience by the attachment. This question may arise when the property has been attached and the decree-holders ask for the sale of the property. But unless art attachment has been made, no such question can arise. It may not eventually be at all necessary for the decree-holders to put the property to sale. But they can insist that their interest should be safe-guarded against any subsequent dealings by the judgment-debtors and apply for an order of attachment. If an order of attachment is passed, it protects their interest and therefore the decree-holders are certainly entitled to ask that the property should be attached. Section 28, Electricity Act (9 of 1910), does not in any manner affect the application before us. It lays down that:

no person other than a licensee shall engage in the business of supplying energy except with the previous sanction of the Local Government and in accordance with such conditions as the Local Government may fix in this behalf and any agreement to the contrary shall be void.

6. No occasion for the application of this section has arisen. It is quite possible that after the attachment the decree-holders may successfully obtain permission from the Government to carry on the business. It is equally possible that they may ask the Court below to appoint the firm of Messrs. Kishore Chand Shiva Charan Lal, to act as receivers in the case. That would, in no way, interfere with the work of the company and at the same time the interest of the decree-holders would be protected. There is also the third possibility that after the attachment the parties may come to an agreement under which their differences may be settled. However all these questions can only arise after the attachment and we are therefore of opinion that the Court below should have passed an order of attachment.

7. The learned Counsel appearing for the respondents has strongly urged before us that we should not interfere with the order passed by the Court: below in revision. He has relied on certain authorities cited by Mulla in his Civil Procedure Code, Edn. 10, p. 391, and has contended that this Court should not interfere merely because the; Court below has acted with some irregularity or where the order of the Court below is only technically wrong. If the matter had been merely technical, we would have certainly agreed with his contention, but in our opinion the question is not purely technical. It affects substantially the rights of the decree-holders. A decree-holder has a right to ask that the property of the judgment-debtors should be attached in execution of his decree and without any adequate reason whatsoever the Court below has disallowed that prayer. It cannot be said that the matter is purely technical. Then we find that the procedure adopted by the Court below in allowing the objections of a third party before the attachment had been made was altogether wrong and ultra vires. In our opinion the case is one in which we should interfere in revision.

8. We wish to make it clear that in our opinion the attachment of the property alleged to be the property of the judgment-debtors would not in any way, be contrary to the provisions of the Electricity Act. Nor do we wish to decide the question as to whether the objectors as debenture-holders, have any right in the property, the attachment of which is sought by the decree-holders. For the reasons given above, we allow this application in revision, set aside the order passed by the Court below and send back the case to it with directions that the prayer of the decree-holders for attachment should be granted and then the execution should proceed according to law. The decree-holders will get their costs from the objectors Messrs. Kishore Chand Shiva Charan Lal. The injunction issued by this Court is discharged.


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