G.K. Misra, C.J.
1. Opposite party No. 3 filed a suit on a promissory note for recovery of dues against opposite parties 1 and 2. The rice huller machine belonging to opposite parties 1 and 2 was attached before judgment. On 1-4-1971 the Civil Court peon after attachment left the huller in charge of the petitioner who executed a receipt on that day wherein he stated that the rice huller was kept in his custody by the peon and he gave an undertaking that he would produce the huller as and when orders would be issued by the court. In the recitals of the undertaking so given there was no personal liability taken by the petitioner. The undertaking was not in favour of the Presiding Officer or any other officer of the Court. It was an under-faking in favour of the Court. On 1-3-1974 opposite parties 1 and 2 filed an application in Court that the petitioner should be directed to nay Rs. 2100/- towards electric charges and Rs. 5500/- towards profits which he gained by the running of the huller for a period of about 11 months when the huller was in his custody. The petitioner filed objection saying that he did not run the huller and did not make any profits. He also said that the claim was beyond the pecuniary jurisdiction of the court and the Court had no jurisdiction to direct an enquiry regarding compensationin the suit, and opposite parties 1 and 2 can have remedy only by way of a separate suit. The trial Court by his order dated 6-3-1974 held that he had jurisdiction to make an enquiry. It is against this order that the civil revision has been filed.
2. Mr. B. Patnaik for the petitioner does not press the point that on account of higher pecuniary value of the claim the court has no jurisdiction to make the enquiry. The only contention urged by him is that the court has no jurisdiction to direct an enquiry and the only remedy that opposite parties 1 and 2 have is to make a claim by way of a separate suit.
3. It is the common case of the parties that section 145 C. P. C. has no application to this case. Section 145 runs thus:--
'145. Enforcement of liability of surety.--Where any person has become liable as surety-
(a) for the performance of any decree or any part thereof, or
(b) for the restitution of any property taken in execution of a decree, or
(c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of Section 47:
Provided that such notice as the court in each case thinks sufficient has been given to the surety.'
The Section has been consistently construed as having application to cases where the surety has undertaken a personal liability. As has already been stated, the receipt given by the petitioner does not disclose any personal liability on his part Consequently Section 145 has no application to this case.
4. The next question for consideration is whether the court can direct an enquiry under Section 151 C. P. C. This section saves the inherent power of, the court and lays down that nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the court. Law is now well settled that if there is no specific provision of the Code to give a particular remedy then the court in exercise of inherent power under Section 151 C. P. C. can afford proper relief. In granting such a remedy nothing would be done by the court which will run counter to a specific provision of the Code.
5. Order 38, Rule 7 C. P. C. prescribes the mode of making attachment in case of an attachment before judgment. It says that save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree.
Order 21, Rule 43 C. P. C. deals with attachment of movable property other than agricultural produce in possession of judgment-debtor. It is to the effect that where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure and the attaching officer shall keep the property in his own custody or in the custody or one of his subordinates, and shall be responsible for the due custody thereof.
Position of law is settled that attachment by actual seizure involves a change of possession from the judgment-debtor to the court; and the rule deals only with the liability of the attaching officer to the court. Whether amin keeps the movables in his custody or entrusts them to a sapurdar, the possession of the amin or the sapurdar is in law the possession of the court and, so long as the attachment is not raised, the possession of the court continues to subsist. The legal position is not altered if for convenience or out of necessity the sapurdar keeps the movable property with a responsible third party who would be a bailee of the sapurdar in the eye of law (See AIR 1961 SC 803, para 7 (Teeka v. State of U. P.).
Thus in this case the attached huller was during the relevant period in the possession of the Court though factually it was in the possession of the petitioner.
6. In AIR 1919 PC 55 (Raghubar Singh v. Jai Indra) the nature of the remedy available when the possession was with the court and the undertaking was not in favour of the Presiding officer or any other officer of the Court was indicated. In that case the instrument did not purport to bind the sureties to any individual officer. It was suggested in course of argument that the person keeping the movable in possession was bound to the court. The judicial committee of the Privy Council rejected this contention with the following observation :--
'But the Court is not juridical person, It cannot be sued. It cannot take property, and as it cannot take property it cannot assign it. It remains, therefore, that there is an unquestioned liability and there must be some mode of enforcing it and that the only mode of enforcing it must be by the court making an order in the suit upon an application to which the sureties are parties, that the property charged be sold unless before a day named the sureties find the money.'
Such an order could be passed obviously in exercise of the inherent power of the court as the court cannot sue or make an assignment in favour of Opposite Parties 1 and 2 to bring a suit,
This view was reaffirmed in AIR 1948 P. C. 189 (Rohani Ramandhwaj v. Har Prasad Singh). Their Lordships observed thus:--
'Upon examination of the matter it appears to their Lordships that the courts in India were right in holding that the case is not within Section 145 if only because the section applies only to the personal liability of the surety. But the appellant's claim is nevertheless one which cannot be made by a suit but can only be made by application to the trial Court under Section 144 ot the Code, and under its inherent powers to enforce the security.'
The underlined sentence brings into bold relief two important features-- (1) The application could be made only under Sec. 144 or 151 G., P. C., and (2) This would not be by a separate suit.
7. The Privy Council view has been consistently followea in several decisions of different High Courts (See AIR 1926 Mad 1005, Sankunni v. Vasudevan, AIR 1962 Assam 23, Bachhraj Dugar v. Lalchand Todi, AIR 1964 Andh Pra 339, Subba Rao v. Venkataraju, and AIR 1966 Andh Pra 151, Y. Bapanna v. D, China).
A single Judge decision in A. I. R. 1935 All 768 (Nanhoom v. Gendiva) is contrary to law inasmuch as it did not keep in view the principles laid down by the Privy Council and the Supreme Court. AIR 1949 All 306 (Mathura Das v. Hari Shanker) did not examine the question of granting relief under Section 151 C. P. C. Under the facts of that case Section 145 C. P. C. had application. Their Lordships observed that the liability could be enforced by an application under Section 145 of the Code or by a regular suit, and that if the judgment-debtor chose the former remedy, there is no legal bar to his doing so. As this was not a case under Section 151 C. P. C. it is not necessary in this case to examine whether a separate suit would lie in respect of relief directly covered by Section 145 C. P. C.
8. On the aforesaid discussion, I am clearly of opinion that the petition of opposite parties 1 and 2 to determine compensation is maintainable under Section 151 C. P. C. and no separate suit would lie. The observations in AIR 1926 Mad 1005 to the effect,
'It has always seemed to me anomalous when the court has granted indulgence to the judgment-debtor upon terms, that court should not be able to enforce those terms without recourse to a separate suit'
are very apt.
9. The civil revision has no merit and is accordingly dismissed. But in the circumstances there would be no order as to costs.