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Gayoor Ahmad Khan Vs. Hazarimal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revn. No. 337 of 1962
Judge
Reported inAIR1965Raj41
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38 - Order 21, Rules 24 and 52
AppellantGayoor Ahmad Khan
RespondentHazarimal and ors.
Appellant Advocate B.D. Sharma, Adv.
Respondent Advocate Lekh Raj, Adv.
DispositionRevision dismissed
Cases ReferredPromotbanath v. H. V. Low and Co.
Excerpt:
- - gayoorahmad khan failed to produce it before the court......respondents nos. 1 and 2 have a money decree against achar respondent no. 3. in, execution of this decree a camel belonging to achar was attached by the amin, achar seized the camel from the custody of the amin by force and was prosecuted under section 394, i. p. c. the camel was delivered in the custody of gayoor ahmad khan applicant by the sessions court, balotra. the decree-holders again applied for the attachment of this camel in execution of their decree under order 21, rule 52, c. p. c. and the camel was attached. gayoorahmad khan failed to produce it before the court. execution was then levied against gayoor ahmad khan. this was resisted by him on the ground that the court at barmer had no jurisdiction to attach the camel which was in the custody of the court at balotra. reliance.....
Judgment:
ORDER

Jagat Narayan, J.

1. This is a revision application by one Gayoor Ahmad Khan of Banner against an appellate order of the District Judge, Balotra holding that the executing Court (Munsif Barmer) had jurisdiction to attach a camel which was in the custody of a Court at Balotra under Order 21, Rule 52, C. P. C.

2. Hazari Mal and Prabhu Lal respondents Nos. 1 and 2 have a money decree against Achar respondent No. 3. In, execution of this decree a camel belonging to Achar was attached by the Amin, Achar seized the camel from the custody of the Amin by force and was prosecuted under Section 394, I. P. C. The camel was delivered in the custody of Gayoor Ahmad Khan applicant by the Sessions Court, Balotra. The decree-holders again applied for the attachment of this camel in execution of their decree under Order 21, Rule 52, C. P. C. and the camel was attached. GayoorAhmad Khan failed to produce it before the Court. Execution was then levied against Gayoor Ahmad Khan. This was resisted by him on the ground that the Court at Barmer had no jurisdiction to attach the camel which was in the custody of the Court at Balotra. Reliance was placed on the decision of a learned Single Judge of the Nagpur High Court in Gyarsilal v. Shankar Rao, AIR 1950 Nag 46.

3. The appellate Court overruled this objection relying on the decision of a Division Bench of the Allahabad High Court in Bhagwati Prasad v. Jai Narain, AIR 1958 All 425.

4. I have carefully considered both these decisions and am in respectful agreement with the view taken in the Allahabad case. The Code of Civil a Procedure does not specifically provide that execution cannot be had against properties situated outside the jurisdiction of the executing Court to which an application is made, yet it has been recognised that the rule of territorial jurisdiction which governs suits also governs execution of decrees. However there are exceptions to this rule. One of these exceptions is that a receiver appointed by the Court under Section 51(d), C. P. C. can deal with properties situated outside the local limits of the jurisdiction of the executing Court--see Promotbanath v. H. V. Low and Co., AIR 1930 Cal 502. Order 21, Rule 48, C. P. C. contains another exception. It is provided in it that where the propetry to be attached is salary or allowancesof a Government servant or the servant of a railway company or local authority, the Court may order that the amount shall be withheld from such salary or allowances either in one payment or bymonthly instalments as the Court may direct, whether the judgment-debtor or the disbursing officer is or is not within the local limits of the Court's jurisdiction.

The mode of attachment under Order 21, Rule 52, C. P. C. is different from the mode of attachment in ordinary cases for which provision is made in Order 21, Rule 24. Actual seizure of the property is not required under Order 21, Rule 52, C. P. C. The attachment is made by a notice to the Court or officer having custody of the property. As the property is already in the custody of a Court or a public officer no question of actual seizure of the property arises. Actual seizure is made by the officers of the executing Court who normally function within the local limits of its jurisdiction. As actual seizure is not necessary in case of attachment under Order 21, Rule 52, C. P. C. the procedure is more or less analogous to that under Order 21, Rule 48, C. P. C. Execution by attachment under Order 21, Rule 52, C. P. C. is also to be treated as an exception to the general rule of territoriality.

5. I accordingly confirm the decision of the Court below and dismiss the revision application with costs.


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