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Behari Lal Mitter Vs. Saral Kumar Ghose - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 113 of 1964
Judge
Reported inAIR1965Cal163
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 55; ;Calcutta High Court Rules (Original Side) - Rule 20
AppellantBehari Lal Mitter
RespondentSaral Kumar Ghose
Appellant AdvocateS.C. Deb, Adv.
Respondent AdvocateB. Dey and ;S. Bose, Advs.
DispositionAppeal allowed
Excerpt:
- .....provides that upon payment of the amount directed to be levied by the writ of attachment and upon payment of sheriff's fees, poundage charges and other amounts mentioned in the proviso to that rule, the judgment-debtor shall be entitled to release of the property attached and as in the present case the appellant had tendered to the sheriff the sum which would cover the amount directed to be levied by the writ of attachment and other charges mentioned in rule 20 of chapter xvii, he was entitled not only to an order staying the sale of the property but also to an order for release of the attachment. in the writ of attachment which was issued by this court the amount directed to belevied is as follows:'amount of decree dated 10-8-48--rupees 4,261-1-10. interest on such amount at 6 per cent.....
Judgment:

Bose, C.J.

1. This is an appeal from an order of A.N. Ray, J., dated the 6th May, 1964 directing stay of sale of a certain property attached in execution of a decree upon deposit of a certain amount by the judgment-debtor with the Sheriff of Calcutta but ordering continuance of the attachment levied notwithstanding such deposit.

2. The appellant was appointed as executor to the Estate of one Sannyasi Charan Ghose. On the 19th August 1926 Sannyasi Charan Ghose died and thereafter the appellant obtained probate of the will of the said Sannyasi Charan Ghose from the District Court at Alipur.

3. In 1928 Sidheswar Ghose, the son of Sannyasi Charan Ghose, instituted a suit in this Courtfor construction of the Will of Sannyasi CharanGhose, for possession of premises No. 197A Muktaram Babu Street, for administration of the Estateand for other reliefs mentioned in the plaint.After various proceedings a decree was passed infavour of the plaintiff on the 10th August 1948against the Estate of the said Sannyasi CharanGhose deceased for Rs. 4,261-1-10 pies withinterest at the rate of 6% from 31st March 1936and costs.

4. Sidheswar Ghose died in 1949. In April 1958 Saral Kumar Ghose, son of Sidheswar Ghose, applied for execution of the said decree and for attachment and sale of premises No. 9 Sitaram Ghose Street, Calcutta, belonging to the appellant Behari Lal Mitter personally. In the tabular statement the decretal amount is stated to be Rupees 4,261-1-10 pies and the amount of interest calculated from the 1st of April 1936 up to 31st January 1958 at 6 per cent per annum is stated to be Rs. 5,591/-, thus aggregating to Rs. 9,852-1-10 pies. This figure is set out in Column 7 of the tabular statement. In Column 8 which relates to costs the following words occur:

'By the said decree dated 10th August 1948 it was amongst others ordered and decreed that the said Behari Lal Mitter also pay to the said plaintiff since deceased his costs of this suit including all reserved costs and the costs of the Reference.

The Bill of costs has not yet been taxed and your petitioner undertakes to execute same at his own costs.'

In Column 10 of the tabular statement there is a prayer for oral examination of Behari Lal Mitter and enquiry into the accounts of the said Behari Lal Mitter as to his dealings and transaction in respect of the Estate of Sannyasi Charan Ghose and there is also a further prayer of attachment and sale of the right, title and interest of Behari Lal Mitter in premises No. 9 Sitaram Ghose Street, Calcutta.

5. The appellant opposed this application on various grounds but on the 28th November 1962 A. N. Ray, J. made an order for attachment of premises No. 9 Sitaram Ghose Street, Calcutta. Thereafter the respondent Saral Kumar Ghose obtained an order for sale of the said property under attachment on the 7th March 1963 and pursuant thereto the sale was fixed on the 6th May, 1964

6. The appellant thereupon preferred two appeals from the said orders dated the 28th November 1962 and 7th March 1963.

7. On the 4th May, 1964 the appellant's son Bhabani Shankar Mitra along with one Ramendra Chandra Deb of Messrs. G.C. Chunder and Co., solicitors, went to the office of the Sheriff as well as to the office of the solicitors of the judgment-creditor to ascertain the exact amount of the claim under the writ of attachment and proclamation of sale and for payment of the amount that may be due, but such information could not be furnished either by the Sheriff's officer or by the plaintiffs solicitors.

8. Thereafter upon instructions from the appellant, the appellant's solicitors by their letter dated the 4th May, 1964 tendered to the Sheriff on account of the claim of the judgment-creditor the following amounts:

'Rs. 4,261.12 nP.For PrincipalRs. 7,220.24 nP.On account of interest.Rs. 106.50 nP.On account of costs up-to the attachment.Rs. 330.00 nP.Sheriffs poundage.Rs. 1,20.00 nP.For cost of withdrawal.Rs. 116.00 nP.Accountant General's commission.'

8a. By the said letter the appellant also tendered to the Sheriff a further sum of Rs, 500/-towards costs of the judgment-creditor subsequent to the attachment and undertook to pay a further sum for such costs that might be found due from the appellant. The amount was tendered by the appellant subject to his rights in the pending appeals. The Sheriff's office however did not accept the money so tendered without reference of the matter to the judgment-creditor's solicitors. On the 5th May 1964 the appellant again tendered the Sheriff the said several amounts mentioned in the letter of the 4th May 1964 but the same was not accepted by the Sheriff.

9. Thereupon the appellant took out a chamber summons for an Order (a) that the applicant might be given leave to deposit with the Sheriff or Messrs. R.C. Basu and Co., Solicitors for the judgment-creditor, Rs. 12,656.86 nP. or such other amount as the Court might direct without prejudice to the applicant's rights and contentions in the appeals, (b) that upon such deposit the sale of premises No. 9 Sitaram Ghose Street fixed on the 6th May 1964 be stayed (c) Ad-interim order and (d) that upon such payment the attachment on premises No. 9 Sitaram Ghose Street be removed.

10. In the petition which formed the ground of summons it is stated in paragraph 12 that the petitioner (appellant) had no cash money to enable him to deposit the amount due under the writ of attachment or proclamation of sale earlier. But on the 20th April 1964 the appellant agreed to sell a portion of the said premises No. 9 Sitaram Ghose Street to one Sm. Ila Ghose and the said intending purchaser had advanced to the appellant Rupees 12,655.86 nP and had agreed to advance theamount that might be necessary for removal of the attachment.

11. In the affidavit-in-opposition affirmed by the respondent Saral Kumar Ghose it is inter alia stated that the total claim of the judgment-creditor under the said decree including costs will be Rupees 50,000/- approximately and the whole object of the judgment-debtor appellant is to get premises No. 9 Sitaram Ghose Street released from attachment by making a partial payment of the amount payable under the decree for the purpose of selling away the said property and if the property is released and sold away nothing will remain from which the judgment-creditor's claim as to costs may be realised. It is further stated in this affidavit (paragraph 9) that bills for a portion of the costs have already been lodged for taxation and the total amount of such bills already lodged is Rupees 22,000/-; a sum of Rs. 13,200/- approximately is also payable by the appellant on account of costs incurred subsequent to the decree. The particulars of such costs are set out in Annexure B to the affidavit-in-opposition. It is stated that the bills for such costs are in course of preparation and they will be lodged for taxation within a very short time.

12. The correspondence annexed to the petition make it clear that a sum of Rs. 12,656.86 nP in cash had been duly tendered to the Sheriff but the same was not accepted and the learned trial Judge thereupon on the 6th May 1964 made the order that upon the appellant depositing the said amount with the Sheriff by 11-30 O'clock on that day, the sale of premises No. 9 Sitaram Ghose Street would be stayed but he directed continuance of the attachment until further order of this Court.

13. It is the propriety of this order directing continuance of the attachment which has been challenged before us in this appeal. Our attention has been drawn to Chapter XVII Rule 20 of the Rules of the Original Side of this Court which is as follows:

'Where property is attached under a warrant issued in execution of a decree for the payment of money, the judgment-debtor shall be entitled to the release of the property from such attachment, on payment or tender to the decree-holder or his Attorney, or to the Sheriff, of the amount directed to be levied by such writ, and upon payment to the Sheriff of his fees, poundage and charges:

Provided that in the event of payment or tender to the Sheriff of the amount directed to be levied by the writ there be also paid the Accountant General's commission and a sum of Rs. 120/- to cover the costs of obtaining an ex parte order for payment of the money out of Court.'

14. It is submitted on the basis of this Rule 20 that this rule clearly provides that upon payment of the amount directed to be levied by the writ of attachment and upon payment of Sheriff's fees, poundage charges and other amounts mentioned in the proviso to that Rule, the judgment-debtor shall be entitled to release of the property attached and as in the present case the appellant had tendered to the Sheriff the sum which would cover the amount directed to be levied by the writ of attachment and other charges mentioned in Rule 20 of Chapter XVII, he was entitled not only to an order staying the sale of the property but also to an order for release of the attachment. In the writ of attachment which was issued by this Court the amount directed to belevied is as follows:

'Amount of decree dated 10-8-48--Rupees 4,261-1-10. Interest on such amount at 6 per cent per annum from 31-3-1936 to realisation.

Costs under decree not yet taxed.

Interest on such costs at per cent per

annum form to realisation.

Costs of previous execution.........

Interest on such costs at per cent per

annum from to realisation.

Costs of present execution................

Sheriff's fees, poundage and charges.

In the event of payment or tender to the Sheriff of the amount directed to be levied by this writ seefoot-note-

(1) Accountant General's Commission

(2) Costs obtaining as ex parte order for payment of the money out of Court--Rs. 120/-.'

There is a note appended to this writ of attachment to the following effect:

'Note: The attention of the judgment-debtor is called to the fact that by payment to the decree-holder or his attorneys of the amount directed to be levied by this writ and to the Sheriff of his fees, poundage and charges he is entitled to the release of the attached property and that payment to the Sheriff will involve him in the payment of further costs.'

15. The contention on behalf of the respondent on the other hand has been that until and unless the costs payable by the judgment-debtor are taxed and the amount of such costs is ascertained, the property cannot be released from attachment because it is clear from the writ of attachment that the amount payable on account of costs is also an item which is directed to be levied by the writ of attachment. In order to strengthen this contention reliance has been placed on Order 21 R. 42 of the Code of Civil Procedure to show that pending the amount of ascertainment of costs by taxation the attachment should continue. Order 21 R. 42 is as follows:

'Attachment in case of decree for rent or mesne profits or other matter, amount of which to be subsequently determined--Where a decree directs an inquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.'

16. This rule contains a special provision for attachment of property of a judgment-debtor pending ascertainment of rent or mesne profits or any other matter as directed by the decree; but I find it difficult to see how this provision can be of any assistance to the respondent in support of his contention for continuance of the attachment in the facts and circumstances of this case. Reference was also made to Order 21 Rule 55 of the Code of Civil Procedure which provides that,

'Where the amount decreed with costs and all charges and expenses resulting from the attachmentof any property are paid into Court or satisfaction of the decree is otherwise made through the Court,or certified to the Court or the decree is set asideor reversed, the attachment shall be deemed to be withdrawn.'

Stress as laid on the word 'costs' as occurring in this Rule and it is submitted that until the amount of costs along with the decretal amount and allother charges and expenses resulting from the attachment are paid, there cannot be any removal of attachment and this Rule 55 also therefore goes to show that payment of the costs awarded by the decree or payable under the decree is a condition precedent to the attached property being released from attachment. But it has been held by judicial decisions that

'parties may by agreement take their ease out of the deeming consequences of Rule 55 and it would be a question in each case whether or not it was intended that the attachment should be deemed to be withdrawn.'

17. It is to be noticed that in the case beforeus, the writ of attachment does not specify the amount of the costs payable by the judgment-debtor to the judgment-creditor. There are various items of costs payable under the decree and on account of previous execution and present execution, but none of such items of costs have yet been faced although some of these costs have been incurred long ago & yet bills on account of such costs were not lodged for taxation so long. If a judgment-creditor is not diligent enough to have his costs taxed and the bills are not lodged for taxation for a long time, be cannot by reason of this process and default on his part keep the attachment pending for an indefinite length of time. In the instant case in the tabular statement the judgment-creditor has expressly stated in Column 8 that the bill of costs has not yet been taxed and the judgment-creditor undertakes to execute same at his own costs. This clause in Column 8 makes it abundantly clear that by this application for execution the judgment-creditor was not seeking to enforce execution of his claim for costs as directed by the decree or other orders of this Court and he was reserving his right to execute the part of the decree which directed payment of costs or subsequent orders for payment of costs after theamounts payable on account of such costs were ascertained as a result of taxation.

18. It appears to me that, this clause in Column it is a clear indication of what the judgment-creditorwas seeking to execute by the tabular statement which resulted in the writ of attachment dated the 28th November 1962 being issued under the direction or the order of this Court. It may be that of the attached property is released from attachment, the judgment-debtor will be in a position to sell itaway and thus defeat the outstanding claim of the judgment-creditor on account of costs not yet taxed. But for this it is the judgment-creditor alone who is to blame and for the default of the judgment-creditor in not getting the costs taxed so long, the property cannot be allowed to remain under attachment for an indefinite length of time. In my view the order of the learned trial Judge directing continuance of the attachment even after the amount 'Sheeted to 'be levied by the writ of attachment andother charges and costs as mentioned in Chapter XVII Rule 20 being paid or tendered by the judgment-debtor cannot be sustained.

19. In the result, the appeal is allowed and the order of the learned trial Judge directing continuance of the attachment until further order of this Court is set aside and it is directed that the attachment of premises No. 9 Sitaram Ghose Street in execution of the decree be removed and the said property be released from attachment, upon the judgment-debtor depositing with the Sheriff the sum of Rs. 12,656.86 nP. (Rupees twelve thousand six hundred and fifty six and naiya Paise eighty six only) at the expiry of a fortnight from today. Upon that deposit being made the attachment will be released.

20. The Sheriff will be at liberty to accept the aforesaid amount on a signed copy of the Minutes.

21. If the deposit is not made within the time fixed the appeal will stand dismissed.

22. Each party will pay and bear its own costs in the appeal.

Mitter, J.

23. I agree.


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