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T.R. Punnavanam Pillai Vs. V. Muthuswami Achari - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberCivil Revn. Petn. No. 1980 of 1961
Judge
Reported inAIR1962Mad444
ActsCode of Civil Procedure (CPC), 1908 - Sections 60 and 60(1); Madras Hereditary Village Offices Act, 1895; Indian Limitation Act - Schedule - Article 7
AppellantT.R. Punnavanam Pillai
RespondentV. Muthuswami Achari
Cases ReferredIn Karan Chand Sood v. Official Receiver
Excerpt:
civil procedure code (v of 1908), order xxxviii, rule 5 and section 60--attachment of tools of goldsmith--whether goldsmith 'artisan'--exemption under section 60.; the petitioner filed a suit against the respondent and took out an application for attachment before judgment of the movables of the respondent who was a goldsmith, under order xxxvii, rule 5 of civil procedure code (v of 1908). an ad interim attachment was ordered. later on, the district munsif passed an order holding that the articles attached were not tools of an artisan and were not exempt from attachment under section 60 of the civil procedure code. the district judge set aside the attachment in regard to three items which he held were exempt under section 60 of the civil procedure code. on revision to the high court it..........not liable to attachment. i am concerned here with clause (b) of section 60(1) which reads thus:tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may, in the opinion of the court, be necessary to enable him to earn his livelihood as such and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section.2. the petitioner filed a suit in the court of the district munsif, tirunelveli, against the respondent on a money claim and applied under order 38, rule 5 for attachment before judgment of certain movable properties and tools of the respondent, and, an ad interim attachment of these.....
Judgment:
1. This Revision Petition raises the question whether the tools of a goldsmith are exempt from attachment under Section 60(1)(b), Civil Procedure Code. Section 60, in enumerating what properties are liable to attachment and sale in execution of decrees, mentions under the Proviso to it various classes of properties which are not liable to attachment. I am concerned here with Clause (b) of Section 60(1) which reads thus:

tools of artisans, and, where the judgment-debtor is an agriculturist, his implements of husbandry and such cattle and seed grain as may, in the opinion of the Court, be necessary to enable him to earn his livelihood as such and such portion of agricultural produce or of any class of agricultural produce as may have been declared to be free from liability under the provisions of the next following section.

2. The petitioner filed a suit in the Court of the District Munsif, Tirunelveli, against the respondent on a money claim and applied under Order 38, Rule 5 for attachment before judgment of certain movable properties and tools of the respondent, and, an ad interim attachment of these properties was ordered when notice was issued to the respondent to show cause why he should not furnish security as required in Rule 5 of Order 38. Accordingly four items of movable properties were attached of which one happened to be a wall clock and the rest were tools used by the respondent in his craft. When the respondent appeared, he filed a counter-statement showing cause against his being called upon to furnish security for the suit claim. He also made a prayer in the counter-statement requesting the Court to release the properties from interim attachment already effected. On this, the District Munsif passed an order holding that the articles attached were not tools of an artisan and were not exempt from attachment. Against this order an appeal was taken to the District Judge of Tirunelveli who took a different view and set aside the attachment in regard to three items which he held were exempt from attachment under Section 60, Civil Procedure Code being tools of an artisan. Against that order of the District Judge, the present Revision Petition is filed.

3. Two points are raised by Mr. Ratnam, counsel for the petitioner. The first is that the appeal itself was incompetent as it purported to be an appeal against an order from which no appeal is provided. The second point taken is, a goldsmith is not an artisan and the machines in question which have been attached do not fall within the category of tools and consequently the attachment was valid.

4. Order 43, rule ,1 (q) provides for an appeal against orders passed under Rules 2, 3 or 6 of Order 38. It is contended that the order in question does not fall under Rule 6 of Order 38, but really falls under Rule 5 of that Order. The order that could be passed by the Court under Rule 5 is in the nature of a preliminary order and this should be followed by a final order under Rule 6 of Order 38. Rule 6 consists of two Clauses (1) and (2). Clause (1) provides for the order to be passed by the Court after the defendant fails to show cause why he should not furnish security, or fails to furnish the security required within the time fixed by the Court, and the Court orders attachment of the property. This would apply to a case where the plaintiff succeeds in an application for attachment before judgment. Clause (2) provides for a case where the defendant Succeeds by showing cause to the satisfaction of the Court why security should not be required. But, in cases where the defendant succeeds and the application for attachment before judgment taken out by the plaintiff is dismissed under Rule 6(2), it is contended, an appeal would only lie where interim attachment had been effected under Rule 5. The scope of Order 38, Rule 6(2) has been the subject of judicial decisions in the High Court of Calcutta, Patna, Allahabad and Bombay, and, the view taken seems to be that in cases where the plaintiff's application for attachment before judgment is dismissed without an interim attachment having been effected, such an order would not fall within the scope of Rule 6(2) of Order 38 and would not be appealable. It is enough to mention the following decisions which have taken this view : Hera Gobinda Rao v. Bhur and Co. I.L.R. (1955) Cal. 478, Kedarnath Himatsinghka v. Tejpal Marwari (1935) I.L.R. 14 Pat. 1, Gopaldas Hiralal v. Mahadu Dagdu A.I.R. 1943 Bom. 24, and Chokhey Lal v. Sri Kishen (1931) 30 All. L.J. 228. The reasoning behind this view is that the language of Rule 6 (2) of Order 38 limits appeals to those order wherein the application of the plaintiff for attachment before judgment is dismissed and under Rule 5 ad interim attachment had been effected at the time when the Court ordered notice to issue to the defendant to show cause for his furnishing security. It is unnecessary for the purpose of this proceeding to canvass the correctness of this view though a different view is quite possible.

5. Assuming therefore that this view is correct the question for my consideration is whether the order passed in this case by the District Munsif would fall under Rule 6 (1) of Order 38. Obviously the order passed would not fall under Rule 6 (2) because the District Munsif did not accept by implication the contention of the defendant that he was not liable to give security for the suit claim. This is not, therefore, a case where the plaintiff's application for attachment was dismissed. But Mr. Ratnam contends that equally the order passed by the District Munsif does not fall under Rule 6(1) because the original application for attachment is still kept pending and has not been disposed of by the District Munsif. He refers to I.A. No. 484 of 1961, the application preferred under Order 38, Rule 5. Nothing more remains to be done under this application except to confirm the interim attachment. In deciding the nature of the order passed by the District Munsif in I.A. No. 534 of 1961, which is also the counter-statement filed by the defendant to LA. No. 484 of 1961, one has to look to the substance of the contentions raised by the defendant rather than the form of the order passed by the District Munsif. I.A. No. 534 of 1961 served both as a counter-statement to LA. No. 484. of 1961 and also as an independent application for raising attachment effected in pursuance of the order already made by the District Munsif under Rule 5 of the Order 38. This would be clear from the fact that in the counter-statement, besides asking for raising the attachment on the ground that the properties were exempt from attachment, contentions are also raised denying the allegations made in the affidavit in support of LA. No. 484 of 1961 filed by the plaintiff which justified the passing of an order for attachment before judgment.

6. It is true that the District Munsif has not dealt with these contentions ex facie in his order in LA. No. 534 of 1961. But, the view taken by him in I.A. 534 of 1961 that the properties are liable to be attached and are not exempt from attachment necessarily implies the rejection of the cause shown by the defendant for not being called upon to furnish security for the suit claim. In this view, though no final order has yet been' passed by the District Munsif in I.A. No. 484 of 1961 the order appealed against must be 'construed as the final order in the case. Therefore the order passed really falls under Order 38, Rule 6(1) and is therefore appealable.

7. In another view also the order passed is appealable. Any question whether particular properties are attachable can be determined in an appeal against an order directing attachment before judgment. The order passed by the District Munsif in this case refusing to vacate the attachment and impliedly confirming it after hearing the defendant decides the question of the attachability of the properties in dispute, and consequently it must be viewed as an order under Rule 6 (1). The same view was taken by a Bench of the Calcutta High Court in Haridas Haldar v. Charuchandra Sarkar (1933) I.L.R. 60 Cal. 1351. I therefore overrule the contention that the order in this case was not appealable and the appeal to the District Judge was incompetent.

8. The next question is whether the defendant in this case is an artisan and the articles attached were his tools. Mr. Ratnam contended that the articles were machines and not tools and consequently they were not covered by the exemption from attachment contained in Section 60(1)(b). The three items in respect of which the District Judge set aside the order of attachment were a cutting press, a machine for processing plates and 150 pieces of dies. There is no dispute that these machines were being used in the trade of the defendant. The contention that they are not tools is based upon the notion that anything which is a complicated implement would not fall under the category of tools.

9. The Concise Oxford Dictionary defines a " tool " as a mechanical implement, machine used in making machinery. There is thus no warrant for limiting the connotation of the term to simple tools and not mechanical implements used in a trade. Indeed, a sewing machine, which is not a simple tool but a complicated machine, was held to be an artisan's tool by the Allabahad High Court in Ahmad Sayeed v. Kamizak Sahra A.I.R. 1941 All. 157. That question had to be determined with reference to Section 60(1), Civil Procedure Code. Similarly, a tractor used by a farmer was held to be an implement of husbandry though it was not a simple tool of a farmer in Dwarka Prasad v. Municipal Board, Meerut . I respectfully agree with these decisions and hold that there is no justification for restricting the connotation of the term " tools " occurring in Section 60(1) (b) to simple implements used by artisans for purposes of their trade.

10. The more difficult question is whether a goldsmith falls within the classification of an artisan. There is no definition of this term in the Civil Procedure Code or in any other Central enactment. Equally, there is no definition in any of the statutes passed by the Madras Legislature though in the Madras Hereditary Village Offices Act, 1895 certain village artisans are mentioned in Section 3(4) as offices to which the Act would apply. In that category the village carpenter, the village blacksmith, the village barber, the village washerman, the village potter, the village astrologer and the village prohit or priest are included. Goldsmith is not included in this category. But, there is nothing decisive flowing from the omission of goldsmith because the list purports to deal with only certain offices of village artisans and it could not be inferred from the omission of goldsmith from this list that he was not considered to be an artisan. Webster in his Dictionary has defined "artisan" as a person who is engaged in a mechanical art or trade. This is the substance of the definition because the actual definition reads thus:

Artisan, one trained to manual dexterity in some mechanical art or trade, a handicraftsman, a mechanic.

This definition was accepted by a Bench of the Bombay High Court in Emperor v. Haji Shaik Mahomed (1907) I.L.R. 32 Bom. 10 with reference to Section 107 of the Emigration Act XXI of 1883. The Oxford English Dictionary defines an artisan as

(1) an artist, (a) one who is employed in any of the industrial arts, a mechanic, handicraftsman or artificer.

Jowitt's Dictionary of Law, 1959 edition defines artisan thus:

Artificer persons who are masters of their art and whose employment consists chiefly in manual labour.

In Chambers Dictionary, 1959 edition, artisan is defined thus:

a handicraftsman or mechanic.

11. Happell, J., had to deal with this question with reference to musical instruments in Manikyam v. Manikyamma (1941) 2 M.L.J. 671. The learned Judge held that a musician was not an artisan and musical instruments used by him were not tools of an artisan within the meaning of Section 60(b), Civil Procedure Code. In coming to this conclusion the learned Judge examined the views of the Allahabad and Bombay High Courts on this question. He also referred to Madras Act III of 1895 in relation to the class of village offices to which that Act applied. The pith of the reasoning of the learned Judge was that despite the Bombay and Allahabad view which gave an extended meaning to the term " artisan " and took it beyond the connotation of handicraftsman or artificer, there was nothing to warrant the inference that the term " artisan " would include any one beyond the scope of " one who is employed in any of the industrial arts." This view of the learned Judge, with all respect, accords with the context in which the phrase "tools of artisans " occurs in Section 60(1)(b), Civil Procedure Code, because this section deals with tools of artisans in conjunction with implements of husbandry of agriculturists. It is clear from this juxtaposition that the legislature intended the tools of certain types of workmen alone should be exempt from attachment.

12. The reasoning of Happell, J., in the above decision was concurred in by Horwill, J., inRamachandra Ayyar v. Sesha Ayyangar (1943) 1 M.L.J. 414. There the learned Judge had to determine the question whether the cooking vessels of a hotel-keeper for preparing sweetmeats were tools of an artisan within the meaning of Section 60(1)(b). The learned Judge referred to the prior decision of Happell, J., and said:

The word ' artisan ' has a well-recognised meaning and is roughly synonymous with ' handi craftsman 'or ' mechanic'.

The learned Judge rejected the view of the Allahabad High Court in Mahabir v. Raghunandan A.I.R. 1935 All. 848, and Bindeshri v. Banshi Lal (1931) I.L.R. 54 All. 399. In the former case the question was whether a person who prepares sweetmeats and vends them was an artisan, and, in the latter case whether a person who makes soaps was an artisan. The tests applied in both these cases in deciding that these workman were artisans was that they were engaged in the production of some commodity for sale. In applying this test the learned Judge of the Allahabad High Court held that the term " artisan " should not be restricted to persons who were engaged in mechnical employment. I see no reason to agree with this view. I respectfully agree with Horwill, J., that the connotation of the expression " artisan " occurring in Section 60(1) must be restricted to a handicraftsman or artificer who is employed in any of the industrial arts.,

13. Mr. Ratnam drew my attention to the decision in Laxminarayan Nathmal v. Shriram Danmal I.L.R. (1938) Nag. 592. There the question whether a goldsmith was an artisan within the meaning of Article 7 of the Indian Limitation Act fell for consideration. In holding that a goldsmith was not an artisan within the meaning of Article 7 of the Indian Limitation Act the definition in Webster's Dictionary that an artisan was a mechanic was adopted by the. learned Judge. Apart from this the context in which the word " artisan " occurs in Article 7 must be kept in mind in considering the force of this decision. Article 7 applies to wages payable to household servants, artisans or labourers hired on daily wages or weekly wages or even monthly wages. Certainly the class of people to which Article 7 applied would not include a workman who does work on his own account and not for remuneration like daily, weekly or even for monthly wages.

14. It may be that in the context of Article 7 of the Limitation Act a goldsmith may not be an artisan, but, that is not the, problem, for my decision. I have to consider the meaning of that term occurring in Section 60 of the Civil Procedure Code. The consideration which would apply to the interpretation of the term " artisan " occurring in Article 7 of the, Limitation Act may not apply to the determination of the, question whether a goldsmith is an artisan under Section 60, Civil Procedure Code. .

15. In Karan Chand Sood v. Official Receiver, Simla (1934) I.L.R. 15 Lah. 26, the question was whether the instruments of a doctor or surgeon were exempt from attachment, being the tools of an artisan. A doctor, it was held, fell outside the classification of " artisan's " because unlike a handicraftsman he did not make things for sale as part of his trade or calling.

16. Thus, on the examination of the authorities, though there is no direct authority on the question, it is clear that a goldsmith is an artisan because he is a handicraftsman who is engaged in one of the industrial arts or trades and makes a living by selling articles which he makes. It does not make any difference that the goldsmith might make jewels with other people's gold, in which case, he only charges for the labour that he expends upon the product. Still the goldsmith does not cease to be an artisan as he is essentially a handicraftsman in what is certainly an industrial trade or art.

17. My decision should not be construed as covering a goldsmith who is in the nature of a master goldsmith employing goldsmiths under him for the purpose of manufacturing jewels for sale. Obviously such a person would be an employer of labour and would not be a handicraftsman. The evidence in the case does not indicate that the defendant was such a person. He was making a living by his own labour and for that purpose he was employing tools which were attached. Since these articles were exempt from attachment the order of the District Judge is correct. The Civil Revision Petition is therefore dismissed. No costs.


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