1. This is an appeal on behalf of the defendant and is directed against an order made on 8th August 1932 under Order 38, Rule 5, Civil P.C. for attachment before judgment of certain palas, or turns of worship, of the famous shrine of Goddess Kali at Kalighat. The Subordinate Judge has directed, notwithstanding the objection taken by the defendant that a pala is not attachable having regard to the provisions of Section 60, Civil P.C., that the pala should be attached and in order to make the attachment effective it is stated that he has appointed two receivers, one the defendant himself, and the other the son of the plaintiff. Against this order the present appeal has been brought.
2. Two preliminary objections have been raised on behalf of the respondent to the hearing of the appeal. It is argued that there is no appeal allowed by the Code because according to the provisions of Order 38, Rr. 5 and 6 an appeal could only lie on the points which are relevant. In other words, it is suggested that the appeal is restricted to grounds mentioned in Rr. 5 and 6 of the said Order. It is said that the question as to whether the properties sought to be attached are capable of attachment having regard to the provisions of Section 60 is not one of the questions which can he determined in an appeal which is provided for under Order 43 against orders directing attachment before judgment. We are of opinion that there is no substance in this contention; for, to take this view of the respondent would be to restrict the scope of the order and the rules. The rules assume that the property sought to be attached must be one, capable of being attached under the law. This objection must be overruled. The next ground put forward on behalf of the respondent is that this appeal has become infructuous as the decree has already been passed. But it would appear from the provisions of Order 38, Rule 11 of the Code that attachment continues to exist even after the passing of the decree. Order 38, E. 9 runs as follows:
Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.
3. Order 38, Rule 11 enacts:
Where property is under attachment by virtue of the provisions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.
4. Attachment before judgment has the same effect as the attachment made in execution of the decree. It has been conceded by the learned advocate for the respondent that the question as to whether the property attached is attachable or not can be raised in a proceeding under Section 47 of the Code when the attachment is made in execution of a decree. We do not see why the same consideration should not apply when the attachment is made before judgment. This objection also has no substance. In support of the appeal Mr. Manmathnath Roy has contended, and contended strenuously, that the turn of worship of the Kalighat Temple of a particular shebait is not a property which is attachable under Section 60 and he has referred to the provisions of Clause (f) of that section and contends that the duty of a shebait is a right of personal service and therefore cannot be attached having regard to this particular provision of the particular clause of Section 60 of the Code. It appears however that the question as to whether the pala, or turn of worship, of a particular shebait of this very endowment is transferable has been the subject of judicial decision and it has been held in the presence of the defendant in the present case in the case of Mahamaya Devi v. Haridas Haldar (1915) 42 Cal 455 that by custom the pala of this endowment is saleable, it is devisable, and it is capable of being seized in execution of decrees. But the custom is to the effect that the transfer must be made in favour of persons within a limited circle, namely, either the shebaits or those who claim through them by succession or otherwise. At p. 466 Mukerjee, J., after adverting to the course of proceedings with reference to the sale and transfer of these palas from the year 1819 has come to the following conclusion:
There is further no question that a Pala has not only been deemed heritable and partible; it has also been treated as devisable, as is illustrated by the case of the sister of defendant 1, who obtained a pala under the testamentary devise of her father. This, again, involves the recognition of the transferable character of a pala: the exercise of the right to make a bequest implies an assertion of the right to make a transfer inter vivos. It follows, consequently, that the customary right to make a sale mortgage, gift or lease of a pala in favour of persons within a limited circle is closely associated with and possibly developed out of the heritable, devisable and partible character of a pala. A custom of this description clearly cannot be characterized on any rational ground as unreasonable or opposed to public policy: see pp. 476 and 477 of the report in 42 Cal
5. It has been argued that it has been laid down in the decision in the case of Rajaram v. Ganesh (1901) 25 Bom 131 that a vritti of a purohit attached to a temple cannot be sold in execution of a decree and that such compulsory alienation is not only opposed to the Hindu law and public policy but is also against the provision of the Civil Procedure Code, But the same case points out that this is so under the ordinary law but there may be custom in particular endowment which overrides the ordinary law. In the case of 42 Calcutta, instances have been given where palas have been sold in execution of decrees. It has been said that these decrees might have been mortgage decrees and the custom is only to the effect that there should be voluntary alienation of these palas. The report however does not make any such distinction and the custom is to the effect as has already been stated that these palas are alienable to particular classes of persons. Where alienations can be made in such limited manner the property is still capable of being attached. So it has been held in a recent decision with reference to somewhat different state of facts in the case of the Nawab Bahadur of Murshidabad v. Karnani Industrial Bank, Ltd. , and it may be pertinent to the present controversy to reproduce the following passage from the decision of their Lordships of the Judicial Committee of the Privy Council in this case, a passage to which our attention has been drawn by Mr. Bhattacharjee who appears for the respondent. Lord Macmillan said this:
In considering the question thus raised, it is important to boar in mind the provisions of the Civil Procedure Code on the subject of execution. By Section 51 the Court is empowered on the application of a decree-holder to order execution of the decree (inter alia) by appointing a receiver. Then by Section 60, Sub-section 1, there is rendered liable to attachment, and sale in execution of a decree all saleable property, moveable or immovable, belonging to the judgment-debtor or over which or the profits of which he has a disposing power which he may exercise for his own benefit, with certain enumberted exceptions. Now while the Moorshedabad Act renders the immovable 'properties to which it relates inalienable except to the limited extent permitted, it imposes no restriction on the enjoyment of the rents by the Nawab Bahadoor for the time being. So long as he is entitled to draw the rents he may dispose of them as he pleases. It is true that the income of the properties was conferred on him to enable him to maintain his dignity and station, but should he fail so to apply it the Secretary of State is given the special power of stepping in and drawing the rents himself and applying them for the Nawab's benefit. Unless and until the Secretary of State intervenes the Nawab may employ his income as he chooses, nor is there any restraint on anticipation imposed by the statute or the indenture. The Nawab therefore has a disposing power over the income. Once this is established no question of public policy is involved, and their Lordships are unable to see that either the terms of the statute or the indenture are contravened by aiding the creditors of the appellant to effect payment out of his income of the debts which he has incurred.
6. Applying this principle to the facts of the present case it appears that a shebait has undoubtedly the power of disposition over the palas according to the custom enunciated in the case to which reference has been made. It is true that decision is not inter partes but is a very good evidence on the question of custom even though not inter partes. Judgments are instances where the custom has been asserted. If the shebait has disposing power over the income one fails to see why his property should not be capable of being attached although ultimately the property will have to be sold in execution of the decree, if such an eventuality occurs, to a limited class of persons. In this view we are of opinion that the contentions raised by the appellant must fail and this appeal must be dismissed with costs. We assess the hearing-fee at one gold mohur. With reference to the Rule we are of opinion, as it has been conceded by Mr. Roy, that the Rule falls with the appeal, that this Rule must be discharged but there will be no order as to costs in this Rule. Let the order be sent down at once.
7. I agree.