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Renuka Batra Vs. Grindlays Bank Ltd. and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtPunjab and Haryana High Court
Decided On
Case NumberCivil Revn. No. 1801 of 1979
Judge
Reported inAIR1980P& H146
ActsCode of Civil Procedure (CPC), 1908 - Sections 60 and 2(17) - Order 21, Rules 46, 48, 52 and 58
AppellantRenuka Batra
RespondentGrindlays Bank Ltd. and ors.
Cases Referred and Abdul Ghani v. Anjuman Dehi Imdad Bahmi Ghuinke Sharqi
Excerpt:
.....interlocutory judgment fall in the category of orders referred to clause (a) to (w) of order 43, rule 1 and also such other orders which poses the characteristic and trapping of finality and may adversely affect a valuable right of a party or decide an important aspect of a trial in an ancillary proceeding. amended section 100-a of the code clearly stipulates that where any appeal from an original or appellate decree or order is heard and decided by a single judge of a high court, no further appeal shall lie. even otherwise, the word judgment as defined under section 2(9) means a statement given by a judge on the grounds of a decree or order. thus the contention that against an order passed by a single judge in an appeal filed under section 104 c.p.c., a further appeal lies to a..........sciences, new delhi, which is admittedly a body corporate under the central act no. 25 of 1956.5. learned counsel for the petitioner referred to order 21 rule 52 and r. 46 and order 21 rule 48 c.p.c. as these are the relevant provisions under which the executing court can issue order of attachment. order 21 rule 46, c.p.c., deals with the mode of attachment of debt, share and other property not in possession of judgment-debtor, whereas order 21 rule 52, c.p.c., provides attachment of property in custody of court or public officer. rule 48 of order 21 contemplates attachment of salary or allowances of servant of the government or railway company or local authority. however, it has been specifically provided therein that the executing court may, order that the amount, shall, subject to.....
Judgment:
ORDER

1. This is a petition filed on behalf of the objector (third party) against the order of the executing Court dated 5th May, 1979, whereby her preliminary objection has been decided against her.

2. Grindleys Bank Limited obtained a decree for Rs. 99,904.82 ex parte on 5th April, 1978, and lodged execution in which warrant of attachment was issued to the Executive Engineer All India Institute of Medical Sciences, New Delhi, prohibiting the payment to the judgment debtor firm. Smt Renuka Batra, a sole proprietor of Batra Associates, filed an objection petition under Order 21 Rule 58 of the Code of Civil Procedure in which a preliminary objection was taken that the Court at Amritsar had no jurisdiction to issue the warrant of attachment prohibiting the payments outside its jurisdiction at Delhi. On the pleadings of the parties, the following preliminary issue was framed on 3lst March, 1979, and the parties did not produce any evidence o this issue, though full opportunity was given:--

'Whether this Court has jurisdiction to pass the impugned order of injunction? OPDH'

3. The executing Court came to the conclusion that the warrant of attachment has been properly issued by the executing Court at Amritsar as it had the jurisdiction and there is no illegality about it Reliance has been Placed or. British Transport Co. Ltd. v. Suraj Bhan, AIR 1963 All 313 and Gayoor Ahmad Khan v. Hazarimal, AIR 1965 Raj 41. Feeling aggrieved by this order, the Objector has come up in revision to this Court.

4. The sole question to be decided in this petition is whether the executing Court at Amritsar had the jurisdiction to issue the order of attachment for money in the custody of Executive engineer, All India Institute of Medical Sciences, New Delhi, which is admittedly a body corporate under the Central Act No. 25 of 1956.

5. Learned counsel for the petitioner referred to Order 21 Rule 52 and R. 46 and Order 21 Rule 48 C.P.C. as these are the relevant provisions under which the executing Court can issue order of attachment. Order 21 Rule 46, C.P.C., deals with the mode of attachment of debt, share and other property not in possession of judgment-debtor, whereas Order 21 Rule 52, C.P.C., provides attachment of property in custody of Court or public officer. Rule 48 of Order 21 contemplates attachment of salary or allowances of servant of the Government or railway company or local authority. However, it has been specifically provided therein that the executing Court may, order that the amount, shall, subject to the provisions of Section 60, be withheld from such salary or allowances. whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court's jurisdiction. This has been specifically so provided in this Rule regarding the salary etc., which are liable to attachment though the judgment-debtor or the disbursing officer may not otherwise be amenable to territorial, jurisdiction of the executing Court. By making this provision in Order 21 Rule 48, C P C., it has been contended, the legislature has made only this exception to the general Rule. On these facts, the executing Court at Amritsar it was argued. could:not issue the order of attachment of money in the custody at Delhi and payable at Delhi. In support of this contention, reliance was placed on Begg, Dunlop & Co. v. Jagannath Marwari (1912) ILR 39 Cal 104; Bilas Mal-Damodar Das v. Hari Das, AIR 1429 Lah 645 Bissesserdas Daga v. Gabdumal Brahmin, AIR 1934 Nag 167: Hanuman Dutt v. Hazarimal, AlR I958 Raj 235; Padmanabha Pillai v. Bank of Kerala Ltd., AIR 1956 Trav Co. 100 and S.N. Sunderson & Co. v. Harbans Singh Sobti & Co. (P) Ltd., ILR (1972) 1 Delhi 263, All the above said authorities and the relevant case 1aw has been discussed and relied upon in the judgment of the Delhi High Court in S. N. Sunderson's case (supra).

6. The learned counsel also contended that the Executive Engineer of the All India Institute of Medical Sciences New Delhi, is also not a public Officer as contemplated under Order 21, Rule 52, C.P.C. because of its definition as contained in Section 2(17) of the Code of Civil Procedure. In view of the said definition the Executive Engineer, being en officer of the Institute of Medical Sciences, which has been created under a statute it is submitted is not covered under the Rule, Reliance in this respect is placed on Kamta Prasad Singh v. Regional Manager, Food Corpn. of India, AIR 1974 Pat 376.

7. On the other hand, the learned counsel for the respondent argued that ;here is no evidence on the record that the said amount was payable at Delhi and therefore, it cannot be presumed in favour of the objector. Moreover, according to the learned counsel, executing Court at Amritsar was competent to issue order of attachment anywhere throughout the territory of India. He cited Chimandas Methuram v. Manager Mahadevappa Firm, AIR 1961 Andh Pra 417; Tarachand v. Misrimal, AIR 1970 Raj 53; British Transport Co Ltd. v. Suraj Bhan, AIR 1963 All 313 and Gayoor Ahmad Khan's case (supra). The learned counsel also disputed the proposition that the officers of body corporate constituted under a statute are not public officers. In this respect he placed reliance on Anna Laticia De Silva v. Govind Balwant Parashare, AIR 1920 Bom 50 and Abdul Ghani v. Anjuman Dehi Imdad Bahmi Ghuinke Sharqi, AIR 1942 Lah 287.

8. After hearing the learned counsel for the parties at great length, I find force in the contention of the learned counsel for the petitioner. I am in respectable agreement with the view taken in Sunderson & Co.'s case (supra) wherein it has been observed that:--

'It appears to me that order XXI Rule 48 is the only exception and that relates to the salary or allowances of a servant of the Government or of a servant of Railway Company or local authority, no matter whether the judgment-debtor or the disbursing officer is or is not within the local limits of the court's jurisdiction. There are no such provisions in the case of property to be attached under Order XXI Rule 52. The absence of the words 'Whether the judgment-debtor or the disbursing is or is not within the local limits of the Court's jurisdiction' from Rule 52 of order XXI is a clear indication of 'the fact that the power exercisable under rule 48 of Order XXI is the only exception and that it cannot be enlarged to bring the case within the purview of Rule 52 of Order XXI. The court or public officer under rule 52 appears to me to be a court or public officer within the territorial jurisdiction of the Court'.

9. The learned counsel for the respondent was unable to distinguish the said authority. The authorities relied upon by him have absolutely no relevancy for the proposition in hand. As regards the authorities which were relied upon by the executing Court, the same are distinguishable on facts. In British Transport Co. Ltd.'s case (supra), debt attached was payable at Agra where the executing Court was situated and therefore, order of his attachment at Delhi could be issued. However, it has been observed therein that 'it has appeared to us that on an examination of the Code of Civil Procedure we must hold that it is the situs of the debt that will decide the jurisdiction of the execution Court and not the situs of the debtor from whom the debt is payable to the judgment-debtor'. In Gayoor Ahmad Khan's case (supra) the custody was that of the Court which is not the position in the present case. In the absence of any evidence that the debt was payable at Amritsar it will be presumed that it was payable at Delhi, particularly when it was specifically so stated in the objection petition and was not denied in the reply filed on behalf of the decree-holder.

10.. As regards the question whether the officers of a corporate body are public officers or not, we are to see the definition as given in the Code of Civil Procedure in Section 2(17). The authorities of Anna Laticia De Silva'a case (supra) and Abdul Ghani's case (supra) are not relevant as the same do not deal with any corporation etc. said therefore, are of no help in deciding the present controversy.

11. Learned counsel for the respondent also tried to argue that even if the order is wrong and illegal, this Court will not interfere in the exercise of its revisional jurisdiction. I do not find any merit in this contention, The executing Court had no jurisdiction to issue order of attachment in the present case and the order being without jurisdiction is liable to be set aside in this petition.

12. For the reasons recorded above, this petition succeeds and the order of the executing Court is set aside and the objection petition is accepted on preliminary objection, The petitioner will be entitled to the costs of this petition.

13. Petition allowed.


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