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Rampalli Ramachandrudu Vs. Sait Bakraj Gulabchand Firm and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberA.A.O. Nos. 212 and 337 of 1951
Judge
Reported inAIR1952Mad826; (1952)1MLJ398
ActsCode of Civil Procedure (CPC) , 1908 - Sections 46 and 47
AppellantRampalli Ramachandrudu
RespondentSait Bakraj Gulabchand Firm and ors.
Appellant AdvocateG. Balaparameswari Rao, Adv.
Respondent AdvocateP.V. Vallabhacharyulu, Adv.
DispositionAppeal dismissed
Cases ReferredPallonji Shapurji v. Edward Vaughan Jordan
Excerpt:
code of civil procedure (act v of 1908), section 46--order of precept issued under--no appeal lies against--not a step in execution proceedings; an order of precept issued under section 46 of the code of civil procedure is not a step in execution proceedings and an appeal against such an order is not maintainable.; rai kissenji v. sri kissen mackar i.l.r. [1939] 2 370 and kasiwar de v. aswini kumar pal a.i.r. 1926 cal. 249 referred to. - - .....is, therefore, not an order directing execution and the attachment under a precept is not an attachment in execution proceedings. in the case of -- 'kasiswar de v. aswini kumar', 90 ind cas 527 : air 1926 cal 249 it was held that an application for an attachment under section 46, c. p. c. cannot be regarded as an application for execution. this was a case regarding rateable distribution, but the principle underlying this view applies."2. what happened there was when a precept was directed to be issued to the sheriff of calcutta by the civil court of benares and the properties in calcutta were kept in attachment, the sheriff claimed poundage for having the attachment made and the question was whether he was entitled to poundage at all. the learned judge in considering that question.....
Judgment:
1. These appeals arise out of the orders passed by the District Judge of East Godavari extending the time for a precept issued to the Court of the District Judge of West Godavari to keep in attachment properties belonging to the appellant who is a judgment-debtor in the suit put of which the application for precept and its extension was made. Mr. P. V. Vallabhacharyulu for the respondent raises a preliminary objection that an order directing a precept is not appealable, as it is not one relating to execution, discharge or satisfaction of the decree. For this argument he relies upon the observations of Sen J. in -- 'Rai Kissenji v. Sri Kissen', ILR (1939) 2 Cal 370. The learned Judge observes as follows:

"After there is an attachment pursuant to a precept under Section 46, C. P. C., further steps have to be taken before the decree can be executed. First, there must be an application under Section 39 of the Code to the Court, which passed the decree, for transmission of the decree to the Court which is to execute the decree. Then there must be an application for execution of the decree to the Court to which the decree has been transferred and the application must be in tabular form as provided in Order 21, Rule 11, C. P. C., when the executing court is not the High Court. If the Court, to which the decree has been transferred is the High Court, then the application for execution must be in form I of the rules of this court and must contain, in addition to the particulars mentioned in Order 21, Rule 11 certain other particulars (vide Chapter 17, Rule 10 of the Original Side rules). It is thus clear that after an attachment under a precept there must be an application for execution in the proper form and it is only upon such application that execution can issue. The order issuing a precept is, therefore, not an order directing execution and the attachment under a precept is not an attachment in execution proceedings. In the case of -- 'Kasiswar De v. Aswini Kumar', 90 Ind Cas 527 : AIR 1926 Cal 249 it was held that an application for an attachment under Section 46, C. P. C. cannot be regarded as an application for execution. This was a case regarding rateable distribution, but the principle underlying this view applies."

2. What happened there was when a precept was directed to be issued to the Sheriff of Calcutta by the Civil Court of Benares and the properties in Calcutta were kept in attachment, the Sheriff claimed poundage for having the attachment made and the question was whether he was entitled to poundage at all. The learned Judge in considering that question found that a precept under Section 46 is not a step in the execution proceedings but is merely a step taken to facilitate execution. Even if a precept has been ordered, still the decree-holder has to apply to the court which passed the decree under Section 39, C. P. C. for transmitting the decree and thereafter an application under Order 21, Rule 11, C. P. C. has to be filed to the court to which the precept has been directed. We agree with the learned Judge that an order of precept under Section 46 is one which tends to facilitate the execution of the decree and not a step in execution proceedings. The same view has been taken by the Calcutta High Court in an earlier case in -- 'Kasiwar De v. Aswini Kumar', 90 Ind Cas 527 (Cal) where Greaves and Cuming JJ. held that an application for attachment under Section 46, C. P. C. cannot be regarded as an application for execution. The learned Judges referred to earlier decisions in -- 'Pallonji Shapurji v. Edward Vaughan Jordan', 12 Bom 400 and other cases. We agree with the principles set forth in the Calcutta cases referred to above.

3. We are, therefore, of opinion that the appeals are not maintainable and they are dismissed with costs, one set.


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