P.D. Desai, J.
1-9. X X X
10. Ordinarily we would have concluded our judgment having disposed of the contempt application but this case has helped to bring to our notice a practice or procedure which appears to have developed in the City Civil Court, the legality of which, in our opinion, is open to serious doubt. By the order dated December 3, 1966 passed below the application of the commissioner, who was appointed by the Court to make inventory of the goods and machinery lying in the factory of the first respondent, the commissioner was directed inter alia to take 'usual undertaking' and further directed to seal the factory in the event of such 'usual undertaking' being not given by the person present at the time of making the inventory. When this order came to our notice, we were unable to appreciate the significance of the expression 'usual undertaking' and we had, therefore, directed the learned Judge in the City Civil Court who had passed the order to make a report to us focusing his attention on the following points:-
(i) as to what is the meaning of the words 'usual undertaking'?
(ii) as to whether it is a practice to direct the commissioner appointed to make inventory to seal the premises where the 'usual undertaking' is not given?
The learned Judge has now made his report on the points referred to him and the relevant portion thereof reads as under:-
'Point No. 1: The words 'usual undertaking mean an undertaking to be given by the party to whom the goods, etc,, found at the inventory are entrusted to the effect that he would produce the said goods, etc, entrusted to him in Court on demand.
Point No. 2: It is not the practice of this Court to direct the Commissioner appointed to make an inventory to seal the premises in all matters where the usual undertaking is not given. Such an undertaking is not ordered in all matters.
In this case such an order was made bearing in mind the peculiar circumstances of the case, the facts mentioned in the report of the Commissioner at Exh. C/6 and the fact that defendant No. 1 to whom the factory belonged could not be traced and the custody of the goods was to be granted to his brother who was not a party to the suit and not subject to the Court's jurisdiction if he dealt with the property in violation of the interim injunction issued by the Court.'
11. It appears from the report submitted by the learned Judge that the expression 'usual undertaking' means an undertaking to be given by the person who is found to be in possession of the movable property of which inventory is made to produce the property in the Court on being called upon to do so. The practice, as the tenor of the report suggests, appears to be that the Commissioner, after making the inventory, takes the movable property, so to say, in his possession and then entrusts it against to the person in whose possession it was found at the time of making the inventory, provided such person agrees to give the requisite undertaking and if such undertaking is not given, the premises in which the said property was found are sealed up. In other words, according to the practice as reported by the learned Judge, the Commissioner, who is appointed merely to make an inventory, assumes the role of a receiver or an attaching officer when the inventory proceedings concluded and takes possession of the movable property and entrusts it again to the person found on the premises and the said property is thenceforth held by such person as a custodian with a distinct understanding that it would be required to be produced in the Court whenever called upon. As the report states, this practice is not followed in the City Civil Court in all cases; however, in cases such as the one before us, namely, where the owner of the property is the time of making the inventory is found in possession of a stranger who may not be bound by an ex parte order of injunction made in the suit against the owner of the property, this practice or procedure appears to have been adopted more or less uniformly. The question is whether such practice is warranted by law and whether it is within the competence of the Courts to make an order like the one in question based on such practice.
12. In this connection it requires to be noted that under the rule of law, the Courts are as much bound by law as any other organ or agency of the State. No order affecting the rights of any person, including a party litigant, can be made by the Court unless it is authorised by the Civil Procedure Code or by any other enactment applicable to the facts and circumstances of the case. An order of such a nature made by a Court cannot be justified on the basis of a practice prevalent in the Court unless the practice itself is embedded in law. The question posed above will have to be answered in the light of this position.
13. Now it is axiomatic that unless the property in possession of a person, including the property of a party to a litigation, is taken in the custody of the Court by an appropriate order made in a proper proceeding, such person cannot be deprived of the possession of his property and there would be no obligation on such person or his agent or servant to undertake to produce the property in the Court as and when directed by the Court. The property would be brought in the custody of the Court only when it has been lawfully taken by the authority of legal process and remains in possession of an officer of the Court. This may be done, for example, by the appointment of a receiver or in the case of moveable property by an order of attachment followed by the actual seizure of the property in the manner prescribed in the Code of Civil Procedure. The question in this case then is : was the property of the first respondent lying in the factory taken in the custody of the Court by the authority of legal process at any stage so that the Commissioner could have validly 'entrusted' the same to the second respondent and taken from him the 'usual' undertaking? The property was prima facie not taken in the custody of the court by an officer duly authorised in that behalf nor was it presumably brought in such custody by the authority of any legal process. It appears to have been assumed, however, that the property was taken in custody of the Court by an order of attachment before judgment and we shall, therefore, proceed to consider whether attachment before judgment was in fact made in the instant case in accordance with the provision of the Code of Civil Procedure.
14. It would be proper in this connection to trace the sequence of events and refer to the various orders passed by the trial Court in the suit filed by the petitioner against the first respondent. On October 3, 1966, the petitioner had taken out a notice of motion (Ex. 6) praying that attachment before judgment may be levied on machinery as well as goods lying in the factory of the first respondent situate at Gol Limda, Narivavad, Ahmedabad more particularly described in the Schedule appended to the said notice of motion and further that the first respondent may be restrained by a temporary injunction from transferring or assigning or in any other manner dealing with the said machinery pending the hearing of the suit. On October 4. 1966 the following order was passed on the said notice of motion:
'Rule; ad injunction restraining defendant from selling, assigning, transferring or in any other manner dealing with property specified in para 4 till further orders. Liberty to claim urgent hearing on giving twelve hours' notice. Emergent process.'
It appears from order that so far as the first prayer was concerned, the Court had directed only a rule to issue against the first respondent and no ex-parte order of conditional attachment under Order 38 Rule 5, sub-rule (3) was passed in respect of the property of the first respondent more particularly described in the schedule annexed to the notice of motion (Ex.6). this would be evident from the fact that conditional attachment by a prohibitory order could only be made where the property sought to be attached is immovable property (vide. Order 38 Rule 5, sub-rule (3) read with order 38 Rule 7 and order 21 Rule 54). The schedule of property annexed to the notice of motion (Ex. 6) contained a list of items all of which can be indubitably classified as movable property, in view of the fact that none of these items of property is shown to be a thing attached to earth or permanently fastened to anything attached to the earth. The property of the first respondent shown in the Schedule being movable property, conditional attachment thereon could have been made only by actual seizure (vide. Order 38 Rule 5, sub-rule (3) read with Order 38, Rule 7 and Order 21 Rule 43). In view of these circumstances and having regard to the fact that conditional attachment by actual seizure was not directed to be made, it would not be unreasonable to assume that the Court had only granted an ad interim injunction in terms of the second part of the relief prayed for in the notice of motion and that the order granting the said relief was presumably made under the provisional of Order 39 Rule 1 of the Code. It would thus appear that no order was passed at that stage by the Court levying conditional attachment on the property of the first respondent and the property was not taken in the custody of the Court under the order dated October 4. 1966.
15. It is the case of the petitioner that the order of interim injunction passed below Ex. 6 could not be served personally upon the first respondent as he was avoiding service and therefore the petitioner took out another notice of motion on November 29, 1996 praying that a Commissioner be appointed to made an inventory of the machinery and goods lying in the factory of the first respondent. On November 29, the following order was passed on the said application:-
'Commissioner appointed Commissioner. To be named by the Registrar to make n inventory of the machines and goods lying in the factory Plaintiff to deposit Rs.50/- in the first instance. Rule on emergent process.'
It requires to be noted at this stage that the commissioner was appointed for the specific purpose of making an inventory and by the very nature of his office it was not within his power nor was it one of his functions to perform the duties of an attaching officer.
16. Pursuant upon the aforesaid order passed by the Court, one C. N. Valand was named by the Registrar of the City Civil Court as Commissioner and it appears that the commissioner went to the factory of the first respondent on December 2 and December 3, 1966, but was prevented from making the inventory. Thereupon, on December 3, 1966 the Commissioner made an application to the Court praying as under :-
'In the above circumstances It seems that no further inventory work can be done as there is an obstruction by one way or the other. It is, therefore, requested to seal the factory after completion of inventory work and to pass necessary orders for the obstruction of any third party.'
On December 3, 1966, the learned Judge in the City Civil Court to whom this application was presented, passed the following order on the said application:-
'Considering the peculiar circumstances, the Commissioner is directed to take police assistance and to complete the work of inventory and if it cannot be completed, he should seal the factory premises and report to the Court on 5.12.1966. After the inventory also, if the party present is not prepared to give the usual undertaking, commissioner may seal the factory.'
This order requires a close scrutiny. The first part of the order is not objectionable and need not detain us. It is only the latter part of the order which requires to be property appreciated because by that part of the order the Commissioner was authorised to obtain 'usual undertaking' and to take consequential action. Could this order by itself be treated as an order of attachment before judgment under the relevant provisions of Order 38? The answer must obviously be in the negative for more than one reason. On the notice of motion taken out by the petitioner praying that the machinery and goods lying in the factory of the first respondent may be attached before judgment, notice was presumably issued under order 38 Rule 5 sub-rule (1) with a view to give an opportunity to the first respondent to appear and show cause why he should not furnish security to produce and place at the disposal of the Court when required, his property to satisfy the decree which may eventually be passed in the suit filed against him. Under the provisions of Orders 38 Rule 6, an order attaching the property of the first respondent could only have been passed if the first respondent had failed to show cause why be should not furnish security. Since in the instant case, the notice issued by the Court could not be served on the first respondent, his property could not have been attached before judgment having regard to the provisions of Order 38 Rule 6. It is also not possible to hold that the above mentioned order was an order directing the conditional attachment of the property of the first respondent under the provisions of Order 38 Rule 5, sub-rule (3). The petitioner had not made any fresh application to the Court praying that the property of the first respondent may be conditionally attached; the order in fact was passed on an application made by the commissioner and appears to have been passed with a view to clothe the commissioner with some additional powers in discharging his function of making inventory of the machinery and goods lying in the factory of the first respondent. In any event, the order does not in terms direct conditional attachment of the whole or any of the property of the first respondent nor does it specify the property to be attached. Besides, the commissioner appointed for the purpose of making an inventory could not have been invested with the power of an attaching officer who alone could have been authorised to make attachment of the said property by actual seizure. For these various reasons. It appears to us that the order in question did not amount to an order of attachment before judgment and did not have the effect of authorising the Commissioner to take the property of the first respondent lawfully in the custody of the Court by any recognised legal process.
17. It appears that the commissioner, thereafter took police assistance and completed the work of inventory. The commissioner then made report to the Court on December 3, 1966 which is on the record of the civil suit at Mark C/2. The last paragraph of the said report which is in Gujarati reads as under when translated into English:--
'The commissioner has made a note of the machinery and goods which are lying in the factory and are mentioned at items Nos. 1 to 40 at pages 1 to 12 of the inventory report. The said machinery and goods have been entrusted by the Commissioner to Shri Girdharlal Veniram Panchal who was present as a representative of the defendant on the condition that he will produce the same in the Court whenever called upon by the Hon'ble Court and a receipt in respect thereof has been separately given by him.'
This document executed by the second respondent herein, which has been described as a receipt by the commissioner incorporates the 'usual undertaking' which the commissioner was authorised to obtain under the order made on December 3. 1966 and it may be fully set out. The original document is in Gujarathi language but when translated into English, it reads as under:--
'In the Court of the Judge of the City Civil Court at Ahmedabad.
Civil Suit No. 1743 of 1966.
Plaintiff : Chimanlal Chheldas Patel.
Defendant : Lilachand Veniram Panchal.
In the said proceeding, we, Shri Girdharlal Veniram Panchal, residing at Dhalgarved Ahmedabad, do bind ourselves by executing this writing on behalf of Lilachand Veniram Panchal, defendant in the said proceeding that:
The machinery described at item Nos. 1 to 40 at pages 1 to 13 in the inventory report prepared by the Commissioner, which is annexed hereto, have been noted in our presence. All the machinery and goods lying in the factory as noted in the said report have been handed over to me by the commissioner appointed by the Hon'ble Court. C. M. Valand today i.e. on 3.12.1966 at 7.40 p.m. The said machinery and goods have been received by me on the condition that the same when the Hon'ble Court so directs and 1 of the same as noted.
Girdharlal Veniram Panchal on behalf of Lilachand Veniram
3.12.66. 7. 40 p.m.'
The terms of the report of the commissioner as well as of the undertaking indicate that the commissioner, as it were took possession of the machinery and goods lying the factory of the first respondent and entrusted them to the second respondent on the said respondent undertaking to the Court to produce the same in the Court whenever called upon. We have already held above that at no prior stage was the property of the first respondent taken in the custody of the Court by following the proper procedure prescribed in that behalf by the Code. The court could not have therefore authorised the commissioner to take 'usual undertaking' in the instant case and the practice, if any, which permits such usual undertaking being taken by the commissioner while making inventory in cases like the present one cannot be justified on the provisions of the Code which we have noted so far.
18. A question, however, may be legitimately posed: Could the Court in the exercise of its inherent power under Section 151 of the Code have not passed the order in question? The answer to the question must depend upon the true appreciation of the scope, nature and object of the inherent powers of the Court. It must be remembered that the inherent power has not been conferred on the Court by Section 151 ; the section merely saves a power which is inherent in the Court by virtue of its duty to do justice between the parties before it. The section does not invest the Court with a power or jurisdiction in effect to avoid the application of the procedure prescribed in an appropriate provision of the Code or to adopt a special procedure not sanctioned by the Code. In other words, the inherent powers of the Court are in addition to the special powers specifically conferred on the Court by the Code. They are complimentary to those powers and the Court would be free to exercise them when the exercise of those powers is not in any way in conflict with what has been expressly provided in the Code or against the intention of the Legislature. The inherent power cannot be exercised in a manner which would be contrary or different from the procedure expressly provided in the Code. It is equally important to note that these powers cannot be exercised over the substantive rights which any litigant possesses and such right could not be affected by specific powers conferred on the Courts. The powers to affect substantive right which a litigant possesses cannot come within the scope of inherent powers of the Court. The question posed above will have to be considered in the light of these well-settled principles.
19. Now section 75 of the Code empowers the Court to issue a commission subject to conditions and limitations which may be prescribed for four purposes, namely for examining any person for making a local investigation for examining or adjusting accounts and for making a partition. Order XXVI lays down rules relating to the issue of commission and allied matters. A commissioner may also be appointed under the provisions of Order 39 Rule 7 for the purpose of inspection of any property which is the subject matter of a suit or as to which any question may arise in any suit, or for other purposes mentioned therein. The powers and functions of the Commissioner so appointed would how ever be circumscribed by the nature of the commission issued to him under any of the aforesaid provisions and the commissioner can only take such action to effectually discharge the commission as is authorised by the relevant provisions of the Code. The Code having expressly dealt with the subject matter and the function of commissioner in the provisions referred to above, there would be no scope for invoking inherent powers of the Court for clothing the commissioner with additional power. That apart, as pointed out above, the effect of obtaining 'usual undertaking' is to virtually deprive a person of the possession of his property and to take it in the custody of the Court and an order authorising the commissioner to take such an undertaking could not have been passed in the exercise of inherent power because it really affects the substantive right of the owner of the property. The practice authorising the Commissioner to take such an undertaking cannot, therefore, be justified even on the strength of Section 151 of the Code.
20. We may point out that if the Court was of the opinion that the property was in the danger of being removed or disposed of with a view to defrauding the petitioner or that it was even other wise just and convenient to remove the first respondent from the possession or custody of the property and to commit the same to the custody of the court, it could have passed a proper order in an appropriate proceeding attaching the said property by directing actual seizure of the goods or appointed a receiver to take possession or custody of the property. This it the specific procedure laid down in the Code and this was the remedy available to the petitioner which he could have resorted to if the circumstances so warranted. It has always to be borne in mind that it is not a part of the function of the Court anyhow to protect a party to a litigation from the alleged acts of other party to his detriment and to pass any order affecting substantive rights of the other party unless the Court is specifically empowered by law to do so. The order in question cannot therefore be justified on the strength of Section 151 of the Code.
21. These are principle which are well established and in the case of Padam Sen v. State of U.P. AIR 1961 SC 218. This principles have been recognised and applied to the facts of that case. In that case the Court had appointed commissioner to seize books of account in possession of the plaintiff at the instance of the defendant who apprehended that the plaintiff would fabricate the books of account with respect to the payments made by them. One of the servants of the plaintiff who had allegedly offered bride to the commissioner for being allowed an opportunity to tamper with those books of account was convicted under Section 165-A of the Indian Penal Code and the matter ultimately went to the Supreme Court. The Supreme Court found that neither under the provisions of Section 75 read with Order XXVI nor under Section 151 of the Code could the Additional Munsiff have passed the order appointing a Commissioner to seize the plaintiff's account books and that the order being one without jurisdiction was null and void. The Supreme Court further found that the Commissioner being in these circumstances not a public servant, no offence under Section 165A of the Indian Penal Code by offering him money in order to have opportunity to tamper with the books of account which were in this custody could be said to have been committed. We need not extract and cite relevant observations from this judgment because the Supreme Court has in the course of its judgment applied the principles to which we have referred above and held that the order appointing the Commissioner to seize the plaintiff's account books was wholly without jurisdiction and null and void.
22. We are, therefore, of the opinion that the order dated December 3, 1966 passed by the learned Judge in the City Civil Court authorising the Commissioner to take the usual undertaking from the person present at the time of making inventory and further directing the commissioner to seal up the factory in case such undertaking was not given was wholly without jurisdiction. If the order is made pursuant upon any practice or procedure followed in that Court it is desirable that such practice should be discontinued immediately.
23. X X X X X X X X X X
24. Ordered accordingly.