Sultan Singh, J.
1. This first appeal is directed against the judgment and order dated 24th September, 1981 under Order 21 Rule 58(4) read with Section 96 of the Code of Civil Procedure (for short 'the Code') partly accepting the claim/objection of the appellant.
2. Briefly the facts are that Smt. Satwant Kaur, respondent No 1 obtained a decree for recovery of Rs. 49,300/- with costs and interest against Ratan Kumar Shivnani, respondent No. 2. On 22nd May, 1980 she made an execution application for attachment of properties. The decree-holder also filed an affidavit dated 29th May, 1980 deposing that the moveable property detailed in the list belonged to the judgment-debtor. Warrant for attachment of moveable property was issued. On 7th June, 1980 various moveable properties were attached.
3. Shri Vali Ram, appellant-objector, father of the judgment-debtor filed an application under Order 21 Rule 58 read with Section 47 and 151 of the Code for delivery of the attached property to him on the ground that theproperty belonged to him and the judgment-debtor had no right, title or interest therein, that the attachment of the property of a third person was illegal and void. The objector has alleged that on 7th June, 1980 decree-holder with process server and about 20 persons carrying lathis, iron rods came to his house at about 1.30 p.m. They broke open the outer door of his house, forcibily entered and surrounded him. The process server threatened to attach movable properties. The objector gave in writing that the judgment-debtor was not living in that house and the properties lying therein belonged to him. The movables as detailed in the list i e. Annexure 'A' to the application, he alleges, were however attached, that there was jewellery and cash belonging to his wife, daughter and daughter-in-law in the locker of the alrnirah which was removed by the process server in spite of protest, that the decree-holder in 1978 had filed an eviction case against her tenant the judgment-debtor, on the ground for sub-letting and parting with possession, that the decree-holder knowing fully that the judgment debtor was not residing and the objector was in occupation with properties belonging to him, got the property attached.
4. The decree-holder in reply denied all the allegations. She has alleged that the objector along with his son has been residing on the ground floor and the judgment-debtor was tenant under her, that the objector produced receipts showing purchase of certain articles which were not attached, that the decree-holder got attached only properties belonging to the judgment-debtor. The decree-holder has admitted that in 1978 she had filed an eviction petition on the ground of sub-letting against the judgment-debtor but it was dismissed as withdrawn, on account of defect in the notice. The objector filed a rejoinder denying the allegations of the decree-holder.
5. The Additional District Judge has held that the cash and ornaments lying in the almirah did not belong to the judgment-debtor but to the objector and released the same. As regards other articles he observed as follows :
'As regards other articles attached, I find that the statement of the decree-holder Satwant Kaur is admissible and reliable, because she has been seeing Rattan Kumar using the same from the very beginning, he being tenant under her. Her statement is also supported by this fact that she did not get the property attached, of which the objector produced the receipts before the bailiff'.
Hence this first appeal.
6. Learned counsel for the appellant-objector submits that the attached movable properties consist of Television, Ceiling Fans, Sofa Sets, Dining Table with Chairs, Steel Almirahs Geyser and Show Case, that these properties were in possession of the judgment never-debtor at any material time, that the same have always been in possession of the objector, that the executing court did not apply its mind and passed a mindless order for the issue of warrant of attachment without any allegation or material on record to show that the property sought to be attached and allegedly belonging to the judgment-debtor was in possession of the judgment-debtor or a third person as the procedure for attachment of property allegedly owned by thejudgment-debtor not in his possession is materially different, from the procedure to attach property in possession of the judgment debtor that in theexecution application or affidavit filed subsequently it was not alleged by thedecree-holder that the properties were in possession of the judgment debtor.His submission is that if the movable property is in possession of the judgment-debtor attachment is made under Order 21 Rule 43 of the Code andin case the movable property is not in his possession attachment is madeunder Order 21 Rule 46 of the Code. His argument is that the attached properties were in possession of the objector and no warrant for attachmentought to have been issued for actual seizure under Order 21 Rule 43 of theCode but prohibitory Order could have been issued under order 21 rule 46 ofthe Code. He submits that the bailiff, the decree-holder and other personstook the law in their own hands and forcibly removed the renovable propertyincluding the almirah containing jewellery in the locker, that the executionproceedings were illegal and thereforee the attached properties are liable to bereleased, that the execution application be dismissed.
7. It is admitted that by an order of this court the executing court was directed to return the jewellery after valuation and furnishing of security by the objector. The trial court got the jewellery valued at Rs. 14,45/- and delivered the same to the objector on furnishing security. The executing court has held that the jewellery did not belong to the judgment-debtor and released the same.
8. Learned counsel for the decree-holder submits that the judgment-debtor has been a tenant in the premises where the objector has also bean residing with him that if at the time of attachment, judgment-debtor was not himself present, and his father objector was present, it cannot be said that the judgment-debtor was not in possession of the properties sought to be attached. His submission is that the judgment-debtor has been a tenant and visiting the premises in connection with his business and thereforee it can be held that the attachment took place at a time when the judgment-debtor was deemed to be in possession of the properties.
9. Provisions for attachment of property are contained in Order 21 rules 41 to 57 of the Code. Rule 43 and 46 pertaining to attachment of movable property are as under :
'43. Attachment of movable property other than agricultural produce,in possession of judgment-debtor :
'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 of one of his subordinates, and shall be responsible for the due custody thereof; provided that when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.' '46. Attachment of debt, share and other property not in possession of judgment-debtor-
1) In the case of-
a) a debt not secured by a negotiable instrument,
b) a share in the capital of a corporation,
c) other movable property not in the possession of the judgment-debtor except property deposit in, or in the custodyof any court, the attachment shall be made by a writtenorder prohibiting,--
i) in the case of the debt, the creditor from recovering the debt and the debtor from making payment thereof until the further order of the court ;
ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon;
iii) in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment-debtor.
(2) A copy of such order shall be affixed on some conspicuous part of the court house, and another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation, and, in the case of the other movable property (except as aforesaid), to the person in possession of the same.
(3) A debtor prohibited under Clause (i) of Sub-rule (1) may pay the amount of his debt into court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same'.
Rule 43 provides for attachment of movable property in possession of the judgment-debtor by actual seizure and the attaching officer is required to keep the property his custody. Rule 46 provides for attachment of movable property not in possession of the judgment-debtor. The rule provided for attachment by a written order prohibiting the person in possession from giving over the property to the judgment-debtor. Under this rule after service of prohibitory order if such person i.e. garnishee disputes his liability, the question of liability of the garnishee is to be decided by the court as if it were an issue as under a suit. Rule 460 of Order 21 of the Code reads as under:
46C-Trial of disputed questions : Where the garnishee disputes liability, the court may order that any issue or question necessary for the determination of liability shall be tried as if it were anissue in a suit, and upon the determination of such issue shall make such order or orders as it deems fit; provided that if the debt in respect of which the application under Rule 46A is made is in respect of a sum of money beyond the pecuniary jurisdiction of the court, the court shall send the execution case to the Court of the District Judge to which the said court is subordinate, andthereupon the court of the District Judge or any other competentcourt to which it may be transferred by the District Judge shalldeal with it in the same manner as if the case had been originallyinstituted in that court.'
The other rules from 41 to 57 also prescribe procedure for attachment of other properties belonging to the judgment-debtor but not in his possession.
10. Sections 102 and 103 of the Evidence Act read as under :
'Section 102 : This burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side.'
'Section 103 : The burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any law that ' the proof of that fact shall lie on any particular person'.
Under Section 102 the burden of proof lies on that person who would fail if no evidence were given on either side. Under Section 103 the burden of proof as to any particular fact lies on that person who wants the court to believe in its existence.
11. In short if the decree-holder seeks execution by attachment of movable property he should specify in the application or indicate in any other manner before attachment whether or not, the property sought to be attached is in possession of the judgment-debtor. If the property is in possession of the judgment-debtor, attachment may be effected by actual seizure under Order 21 Rule 43 of the Code and if it is not in his possession, the attachment can be made only by a written order prohibiting the person in possession of the property from handing over the same to the judgment-debtor. Further if such person i.e. the granishee disputes his liability alleging that the judgment-debtor has no right, title or interest in the property in question or the property was not liable to be attached, the matter is to be decided by the executing court. The onus to prove that the property not in possession of the judgment-debtor, is liable to be attached is on the decree-holder.
12. The first question in this case is whether the property was in possession of the judgment-debtor or it was got attached from the possession of the objector. It is not disputed that on 7th June 1980 when attachment took place, the judgment-debtor was not residing in the house. The case of the decree-holder is that he has been coming off and on in connection with his business and staying in the premises. The decree-holder as DHW 1 has deposed that she has been residing on the third floor, that ground floor was let out in 1971 to the judgment-debtor who is a contractor, that she has beenon visiting terms with him, that judgment-debtor at the time of occupying the premises, had T.V., Typewriter, Fridge, Fans, Almirah, Geyser, Sofa Set and other house-hold articles, that the father of the judgment-debtor i.e. the objector was residing in East Patel Nagar, and he occupied the premises after two years of creation of tenancy, that the judgment-debtor has been doing his contract business at two places i.e. Delhi and Neemuch (M.P.), that he has his office in the premises, that when the property was attached Vali Ram, objector and his other family members were present, that in almirahs there were files of the judgment debtor and also gold ornaments, belonging to the wife of the judgment-debtor, that about 10 days before attachment, judgment-debtor attended the 'marriage of his younger brother in the premises that the judgment-debtor had not surrendered the. possession of the tenancy premises, that the T.V. was being used by his childern and he was paying his license fee. In cross-examination she has stated that the judgment-debtor resides at Neemach as well as at Delhi, that he is not getting ration for the last about one year 'at Delhi, that she had filed ejectment petition in 1978 on the ground of sub-letting of the entire premises to Vali Ram, objector, that on his visit the judgment-debtor stays in the premises for a day or two, that at the time of attachment judgment-debtor was not present, that judgment-debtor had come to Delhi about a week or ten days before the date of attachment and had gone back with his family after one day of the marriage of his brother. On behalf of the objector he has examined himself as O.W. 1. Briefly he has deposed that his son, judgment-debtor, had shifted to emuch (M.P.) and that he has been residing there, that the judgment-debtor had no connection with the attached property, that the property belongs to him (objector), In cross-examination he had admitted that the license of T.V. is in the name of the judgment-debtor, that he has receipt to other properties showing ownership. The objector has examined Saraswati, his daughter-in-law, wife of the judgment-debtor as O.W. 2. She has deposed that she runs a school at Neemuch (M.P.) that she and her husband left Delhi on 28th March, 1977 permanently and had taken their luggage, to Neemuch, that the attached articles did not belong to her husband. Mrs. Kavita, another daughter-in-law of the objector as O.W. 3, Bhagwan Das his son as O.W. 4 and Ram Chand, Goldsmith as O.W. 5, have also been examined. The deposition of all his witnesses is to the e. feet that the attached properties do not belong to the judgment-debtor but to the objector. The entire evidence has been read by the counsel and the -irresistible conclusion is that the judgment-debtor with his luggage shifted to Neemuch (M.P.) in March, 1977, that he has been visiting on occasions the premises at Delhi from where the goods were attached, that at the time of attachment the goods were not in possession of the judgment debtor but of the objector, that the judgment-debtor on family functions visits Delhi. It is also in evidence that ten days before attachment the judgment-debtor and his family visited to attend the marriage of the brother and had left the house prior to the date of attachment. As the movable property at the time of attachment was not alleged to be in possession of the judgment-debtor issue of warrant for attachment by actual seizure under Order 21 Rule 43 of the Code was contrary to law. The decree-holder ought to have proceeded for attachment of the said articles under Rule 46 of Order 21 of the Code.
13. The appellant-objector has also filed an application (C.M. No. 618 of 1982) under Order 41 Rule 27 of the Code for leave to place on recordcertified copy of the eviction petition filed by the decree-holder against her tenant, the judgment-debtor on 23rd May, 1978 wherein the allegation is that the entire premises have been illegally sublet, assigned or otherwise parted with the possession to the objector and his son Krishan Kumar Shivnani. In reply the decree-holder states that the judgment-debtor in his written statement had pleaded that he was in possession of the premises that Vali Ram Shivnani his father and Krishan Kumar Shivnani, his brother constituted a joint Hindu family who were also living in the premises. It is not necessary to decide this application as I am of the opinion that there is sufficient evidence on record to hold that the judgment-debtor was not residing in the premises and he was not in possession of the property. The application is, thereforee, to be dismissed.
14. I am of the opinion that as movables were not in possession of the judgment-debtor provisions of Rule 43 of Order 21 of the Code were not applicable. The seizure of the movables was, thereforee, not in accordance with law. There was no allegation or indication of any other nature that the property sought to be attached was in possession of the judgment debtor. The only allegation was that it belonged to the judgment-debtor.
15. The counsel for the decree submits that the onus to prove that the attached property belonged to the objector was on the objector and he ought to have produced receipts showing purchase of the attached articles showing purchase of the attached articles by him. I do not agree. The objector shifted to the suit house in S973 along with his another son. He has been residing in the premises possessing also the movables and other property. He might not be having cash memos. With respect to all the items. Failure to produce cash memos and receipts showing the ownership of the movables is no ground for holding that the objector is not the owner of the attached goods. On the contrary if the goods are not attached from the possession of the judgment-debtor the presumption is that the judgment-debtor was not the owner of the attached goods and onus to prove that the goods belonged to the judgment-debtor is upon the decree-holder. If the goods are attached from the possession of the judgment-debtor prima facie it can be held that the attached property belonged to him. But if the movables were not in possession of the judgment-debtor it cannot be presumed that the property belonged to the judgment-debtor. From the evidence on record it is not possible to hold that the judgment-debtor is or was the owner or in possession of the attached property. The license of television set is in the name of the judgment-debtor. The objector and wife of the judgment-debtor have deposed that at Neemuch there is no television station and thereforee the judgment-debtor had not taken away the television set to Neemuch and it was gifted to the wife of the objector. There is no rebuttal to this evidence. The television also thereforee cannot be held to be the property of the judgment-debtor.
16. The counsel for the appellant submits and rightly that it is the decree-holder who wants the executing court to believe that the movables belong to the judgment-debtor and thereforee the burden to prove that the movables belong to the judgment-debtor was on the decree-holder which she has failed to discharge. She has satisfied herself by deposing only that she had been residing on the upper floor and has seen the judgment debtor using the property but the fact remains that the judgment-debtor had not bee residing in the premises since long as he had shifted to Neemuch. No evidence has been produced on her behalf to hold that the judgment-debtor is the owner or was in possession of any item of the attached property.
17. The executing court has not correctly applied the principles of law and has held the attached property belonging to the judgment-debtor on the ground that the statement of the decree-holder was admissible and reliable. The statement of the decree-holder is no doubt admissible but her solitary statement also supports the case of the objector. The executing court was, thereforee, incorrect in holding that the articles other than ornaments and cash were rightly attached. The attached property does not belong to the judgment-debtor and was not in his possession at the time of attachment. The appeal is accepted and the attached property is released. The objector would be entitled to possession of all articles which were attached. The executing court is directed to get the attached property delivered by the suspender to the objector immediately. The execution application is dismissed with no order as to costs.