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Kishan Gopal Vs. Northern Railway Employees Co-operative Credit Society Ltd., Jodhpur Division - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Regular Second Appeal No. 501 of 1967
Judge
Reported in1978(11)WLN371
AppellantKishan Gopal
RespondentNorthern Railway Employees Co-operative Credit Society Ltd., Jodhpur Division
Cases ReferredComl. Corpn. v. S.M. Khadri
Excerpt:
(a) civil procedure code - section 2(17) & order 21 rule 52--railway co-operative credit society is not a 'public officer'--an amount in hand of credit society cannot be validly attached.;the credit society was not 'public officer' within the definition of section 2(17) of the civil procedure code. hence, under order xxi rule 52, cpc there could be no valid attachment of an amount which was in the hands of the credit society, because the rule applies to attachment of property in the custody of a court or of a public officer only.;(b) civil procedure code - order 21 rules 46 & 58--amount neither in possession of judgment debtor nor in custody of court--held, there was no valid attachment.;the amount in question was not in the possession of smt. juli lobo judgment debtor, nor was it..........to the deceased pjd'souja and which was lying deposited in the northern railway cooperative credit society, ltd hereinafter referred-to as the credit society. the court of execution passed an order of attachment under order xxi rule 52, cpc on july 15, 1954, but the credit society despite attachment sent the sum back to the northern railway on january 7, 1955 and sent an information to this effect to the court concerned. thereupon, the executing court issued a notice to the credit society to show cause why the amount be not recovered from it by way of attachment of its assets. the credit society made certain objections on april 14, 1956, but they were rejected by the court of execution and the credit society was directed to send the amount in the court within one month. it appears.....
Judgment:

K.D. Sharma, J.

1. This is a civil second appeal filed by Kishan Gopal plaintiff' against the judgment and decree of the Senior Civil Judge No. 1, jodhpur, dated August 7. 1967, by which the judgment and decree passed by the Additional Munsiff No. 1, Jodhpur City, dismissing the plaintiff's suit for recovery of Rs. 1611.75 P. as principal together with a sum of Rs. 205 50 P. as interest was confirmed but the cross-objection filed by the respondent against disallowance of costs of suit to him was accepted.

2. The brief facts giving rise to the suit, out of which this appeal arises, may be stated as follows One PJD' souja was an employee of the N Rly. He used to work in the Workshop No. 1 of the said railway. He secured a loan from the plaintiff-appellant which he could not repay during his life-time. After the death of PJD'souja the appellant instituted a suit against his mother Smt. Juli Lobbo as his legal representative for recovery of the loan amount and obtained a decree against the defendant on May 24, 1952, for a sum of Rs. 1432/. The decree was executable against the estate of the deceased PJD'soaja in the hands of his mother. The appellant filed an application for execution of the said decree and sought attachment of a sum of Rs. 1611.75 P. out of the total amount of Rs. 2300/-, which belonged to the deceased PJD'souja and which was lying deposited in the Northern Railway Cooperative Credit Society, Ltd hereinafter referred-to as the Credit Society. The Court of execution passed an order of attachment under Order XXI Rule 52, CPC on July 15, 1954, but the Credit Society despite attachment sent the sum back to the Northern Railway on January 7, 1955 and sent an information to this effect to the court concerned. Thereupon, the executing court issued a notice to the Credit Society to show cause why the amount be not recovered from it by way of attachment of its assets. The credit society made certain objections on April 14, 1956, but they were rejected by the court of execution and the Credit Society was directed to send the amount in the court within one month. It appears that the Credit Society sought time to deposit the amount in the court but it failed to do so and again objected to the attachment but its objection was rejected on February 27, 1960. The court of execution thereafter sold the debt under attachment and it was purchased by the appellant for Rs. 400/-, only on July 20, 1960 Accordingly, a sale certificate was issued to the appellant on September 30, 1960. Later on, the appellant brought a suit for recovery of the amount of Rs. 1675 00 as principal, Rs. 205. 50 P. as interest and Rs. 3 50 as notice expenses against the Credit Society on the basis of the sale-certificate after giving the Credit Society a demand notice for this amount.

3. In response to the summons issued in the suit, the Credit Society appeared in the court and denied the claim of the appellant. The suit was resisted on several grounds. The main ground was that the amount in question was not attached by the court of execution in accordance with the provisions of Order XI, Rule 46, CPC and so it was returned to the Northern Railway oh January 7, 1955. As there was no valid attachment, the court of execution was not empowered to sell the amount at a public auction and the plaintiff could not acquire any right for the recovery of the amount on the basis of an auction sale thereof in his favour. It was further pleaded that the sale was not maintainable against the Secretary to the Credit Society as the Society was a registered one and the suit mast have been filed against it.

4. The plaintiff-appellant, thereupon, amended the title of the suit with the leave of the court by striking out the word 'Secretary' therein so as to bring the suit against the Credit Society. In reply to the amended plaint the Credit Society further raised a plea of limitation contending that the suit against it was barred by time.

5. On the pleadings of the parties, the trial court framed the following 10 issues

1. Whether the plaintiff obtained a decree in suit No. 190 of 1952 against Smt. Juli Lobo as the legal representative of the deceased PJD'souja on 24-5-52?

3. Whether in the execution of the decree the amount of Rs. 1611 74 P. out of Rs. 2300/-, belonging to the deceased PJD souja deposited with the Northern Railway Employees Co operative Credit Society was got attached?

3. Whether the plaintiff is entitled to recover the suit amount from the defendant?

4. Is the plaintiff entitled to recover interest?

5. Is the suit in the present form not maintainable against the defendant as it is brought against the Secretary and not against the Society?

6. Whether the plaintiff is estopped and barred from filing the present suit as the former suit against the defendant was dismissed on 6-9-60?

7. To what relief the parties are entitled?

8. Whether the suit is barred by limitation?

9. Whether the defendant is entitled to compensatory costs under Section 35A CPC?

10. Whether the attachment of the funds was not validly made under Order 21 Rule 46, CPC. If so, to what effect?

and recorded the evidence. Issue No. 1 was decided in favour of the plaintiff and it was held that a decree for a sum of Rs. 1432/-, was obtained by the plaintiff against the legal representative of PJD'souja and an application was made to execute it. Issues Nos. 2 and 10 were taken together for decision and it was held that sum of Rs. 1611.75 P. out of the total amount of Rs. 2300/-, deposited with the Credit Society was not duly attached in accordance with Order XXI Rule 46, GPC and the sale amount was returned by the Credit Society to the N. Rly before any valid attachment thereof & so the auction sale of the aforesaid amount by the court of execution was invalid and the plaintiff appellant did not acquire any right or title to the amount in pursuance of such sale. Issue No. 5 was not pressed and so it was decided against the defendant. As for issue No. 6 the learned Munsiff observed that the present suit was not baned for the reason that the previous suit filed by the plaintiff was rejected 'or want of notice under Section 143 of the Rajathan Cooperative Societies Act. Issues Nos. 8 and 9 were also decided against the defendant. The rest of the issues Nos. 3, 4 and 7 were decided against the plaintiff in view of the findings on issues No. 2 & 10 & it was held that the plaintiff was not entitled to recover anything from the Cr. Society. The result of the discussion was that the plaintiff's suit was dismissed and the parties were ordered to bear their own costs Aggrieved by the judgment and decree of the learned Munsiff, the plaintiff preferred an appeal in the court of the District Judge, Jodhpur. The defendant also filed a cross-objection and claimed costs of the suit. The appeal and the cross-objection were heard by the Senior Civil Judge No. 1, Jodhpur. The Senior Civil Judge dismissed the appeal and allowed the cross-objection as stated above. Hence this second appeal.

6. I have carefully perused the record and heard Mr. I.C. Maloo for the appellant and Mr. M.L. Chhangani for the respondents. Firstly, it has been contended on behalf of the appellant that both the courts below committed an error in holding that the attachment of the amount was made by the court of execution under Order XXI Rule 46, CPC and as there was no valid attachment on account of non-compliance with the requirements of the provisions of the said Rules, the subsequent auction-sale of the amount by the executing court in favour of the appellant was illegal and could not confer any right on the latter to recover the amount from the Credit Society It was further argued that the findings of both the courts below on issues Nos. 2 and 10 were perverse and were liable to be set aside in view of the fact that in certain cases attachment could be made by the court in exercise of its inherent powers as was done by the court of execution in this case.

7. I have considered the above contention and found it untenable. In the present case the amount of Rs. 1611-75P. sought to be attached by the plaintiff appellant belonged to the deceased F.J.D. 'Souja. It was lying deposited with the Credit Society at the time when a prayer for its attachment was made by the appellant in the court of execution. This sum was not in possession of Mrs. Juli Lobo judgment-debtor or was not deposited in or in the custody of any court. The attach orient of this sum, therefore, could not be effected by actual seizure. It could be done by a prohibitory order only under Order XXI Rule 46, CPC which, prior to the amendment of the Civil Procedure Code, read as follows:

Rule 46(I) In the case of-

(a) a debt not secured by a negotiable instrument,

(b) a share in the capital of a Corporation,

(c) other moveable property not in the possession of the judgment-debtor, except property deposited in or in the custody of, any court,

The attachment shall be made by a written order prohibiting,-

(i) in the case of debt, the creditor from recovering the debt and the debtors, from making payment thereof until the further order of the Court;

(ii) in the case of 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 moveable 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 conspicous part of the Court-house and another copy shall be sent in the case of the debt, to the proper officer of the Corporation, and in the case of the other moveable 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,

From a bare perusal of the order of attachment Ex. 1, it is evident that it was passed by the learned Munsiff, Jodhpur City, under Order XXI Rule 52, CPC in the following terms:

mijksDr vuoku ds eqdnes es en;wu ih-ts-Mh- lks>k dh jde djhc :0 2300@& v{kjs jde :i;s rsbZl lkS vkids xzkgd es tek gS mles ls fMxzh dh jde 1611 AAA lksys lkS X;kjg :i;s ckjg vkuk dqM+d dj ;gkW Hksts tkos ;k dksbZ ,srjkt gks rks rkjh[k 18&5&54 ds igys fy[kus dk d'V djs A

Order XXII Rule 52, CPC is applicable only to a case of an attachment by one court of property in the custody of another court or a public officer. The amount sought to be attached was not in the custody of any court, nor was it in the custody of a public officer. The Credit Society was not 'public officer; within the definition of Section 2(11) of the Civil Procedure Code. Hence, under Order XXI Rule 52, CPC there could be no valid attachment of an amount which was in the hands of the Credit Society, because the rule applies to attachment of property in the custody of a court or of public effaced only Both the courts below committed no error in holding that the attachment in the present case was not effected by any prohibitory order under Order XXI Rule 46, CPC because the referred to above attachment order does not indicate that the mother of PJD'souja was prohibited from recovering the debt from the Credit Society and the Credit Society was prohibited from giving it over to the judgment debtor, i.e. Smt Juli Lobo. Further there is nothing on the record to show that a copy of any prohibitory order was fixed on some conspicuous part of the court house and another copy was sent to the Credit Society. The contention of the earned Counsel for the appellant that the attachment was made in the instant case in exercise of the inherent powers of the court is not acceptable, because Section 151, CPC cannot be lesorted to nullify or negative the express provisions of Order XXI relating to attachment of moveables. The amount in question was not in the possession of Smt. Juli Lobo judgment-debtor, nor was it deposited in or in the custody of any court. The attachment could be made by a written order prohibiting the person in possession from giving it over to tie judgment-debtor. Hence, the case was covered by the specific provision of Order XXI Rule 46, CPC and, therefore recourse could not be had to the inherent powers of the court under Section 151, CPC. Reference in this connection may be made to an authority of the Patna High court reported as Imperial Bank v. Bibi Sayeeden : AIR1960Pat132 in which a similar view was taken. The earned Counsel for the appellant cited Upendra Mohan Pal v. Nulini Mohan Roy AIR 1937 Cal. 200 and Champarun Suggar Co. v. Hart Das : AIR1966Cal134 in support of his contention. I have carefully perused these rulings and found them distinguishable on the facts of this case. As there was no valid attachment of the amount under the law belonging to the judgment debtor, the court of execution was not empowered to sell it at a public auction. As soon as it came to the notice of the executing court that the amount had been returned by the Credity Society to the Northern Railway, it could make a valid attachment thereof by a written order prohibiting the Northern Railway from giving it over to Mrs. Juli Lobo. This was not done by the COUJ t of execution for reasons best known to it Consequently I agree with the courts below that there was no valid attachment of the sum of Rs. 1611.75 P. at all and this sum or debt could not be sold at a public auction and the appellant did not get any right to recover it from the Credit Society in pursuance of the sale-deed thereof.

8. Another contention put forward before me by the earned Counsel for the appellant is that the Credit Society objected to the attachment of the amount in the court of execution but its objections were rejected. The Credit Society ought to have filed a suit under Order XXXI Rule 63, CPC which it did not file and so it could not afterwards contend that the property, being not validly attached, was not recoverable from it. Reference in this connection was made by the earned Counsel for the appellant upon an authority of the Madras High Court reported as Veerabadhraoya v. Subberayudu AIR 1942 Mad. 650 and on a ruling of this Court Mangilal v. Kedarnath . The above contention also is devoid of substance, because Order XXI Rule 58, CPC postulates the existence of attachment. Where there in no attachment at all in the eye of law an objection under this rule is incompetent. Apart from this, the position of the Credit Society was that of a garnishee. A garnishee cannot be corn jelled to pay the debt into court, nor can the court proceed against him or his property for the recovery of the amount. Even if the-Green Society raised an objection to the attachment in the court of execution and its objection was rejected, Reach objection cannot be regarded as a claim-petition under Order XXI Rule 58, CPC Reference in this connection may be made to an authority of the Andhra Pradesh High Court reported as Hyd Co-op. Coml. Corpn. v. S.M. Khadri : AIR1970AP162 . The relevant observations there from are quoted below-

34. Form 62 of the Appendix in terms of which the notice has to be sent also states that if an officer has any objection he should inform the court of the grounds thereof. In this case, however, no notice was sent according to this form asking him to inform the grounds of objection. The notice was sent only in form 21 of Appendix 'E' to Civil PC asking the officer to hold money subject to the further orders of the Court. Apart from this, we are of the opinion that there is no distinction in principle between the denial of amount in the custody of on officer when an attachment is made under Order 21 Rule 52, Civil PC and the denial of a debt when the attachment is made under Order 21 Rule 46 Civil PC In either case we do not think that the provisions of Order 21, Rules 58 to 63 are attracted. There was, therefore, no necessity for the officer or the Government to make any claim under Order 21 Rule 58, Civil PC. It is no doubt true, that the Government, tiled a claim petition which was dismissed & thereupon filed suit under Order 21 Rule 63, Civil PC. These proceedings according to us were misconceived & the mere fact that the Government took proceedings which do not lie does not preclude them from contending that the case is not covered by Order 21 Rules 58 to 63, Civil PC and that, any decision in the claim petition does not prevent them from questioning the validity of the attachment inspite of the fact that they filed a suit which was later withdrawn.

It can raise such objections in a subsequent suit by purchaser. Consequently, I am unable to hold that the respondent Credit Society was estopped from challenging the attachment and its validity in the subsequent suit when such objections were rejected by the court of execution.

9. The third contention on behalf of the appellant is that the lower appellate court committed an error in allowing cost to the respondent. The above contention also has no force, because, there was no reason for not awarding costs to the defendant. There is nothing on the record to show that the respondent was guilty of any misconduct or that there was some other sufficient cause for depriving him of the costs. The lower appellate court, therefore, rightly held that the respondent was entitled to the costs of the suit.

10. The result of the above discussion is that the second appeal filed by the plaintiff-appellant has no force and is hereby dismissed with costs.


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