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Uma Kanta Banerjee Vs. Renwick and Co. Ltd., Decree-holder and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. (F.M.A.) No. 96 of 1952
Judge
Reported inAIR1953Cal717,58CWN683
ActsCode of Civil Procedure (CPC) , 1908 - Section 51 - Order 20, Rule 10 - Order 21, Rules 21 and 31
AppellantUma Kanta Banerjee
RespondentRenwick and Co. Ltd., Decree-holder and ors.
Appellant AdvocateLala Hemanta Kumar and ;Sudhir Kr. Dutt, Advs.
Respondent AdvocateA.C. Mitra and ;Sunil Kumar Mitra, Advs.
DispositionAppeal dismissed
Cases ReferredHargobind Kissenchand v. Hukum Sing
Excerpt:
- .....judge, birbhum, dated 18-2-1952.2. the facts may be shortly put as follows: on 6-6-1951, the decree-holder respondent obtained a decree inter alia for specific delivery of possession of certain machines described in schedule d to the plaint. the decree further directed that if possession could not be had, the defendant would have to pay a sum of rs. 54,794-14-0 as the value of the said properties. as the judgment-debtor did neither deliver the properties mentioned in schedule d nor pay the price thereof as mentioned in the decree, the decree-holder filed on 3-8-1951, an application for execution of the decree. in the petition for execution the decree-holder prayed for a variety of reliefs including a prayer for delivery of the said specific properties and for attachment of a decree.....
Judgment:

G.N. Das J.

1. This is an appeal by the judgment-debtor and is directed against an order of Mr. M.N. Mukherji, learned Additional Subordinate Judge, Birbhum, dated 18-2-1952.

2. The facts may be shortly put as follows: On 6-6-1951, the decree-holder respondent obtained a decree inter alia for specific delivery of possession of certain machines described in Schedule D to the plaint. The decree further directed that if possession could not be had, the defendant would have to pay a sum of Rs. 54,794-14-0 as the value of the said properties. As the judgment-debtor did neither deliver the properties mentioned in Schedule D nor pay the price thereof as mentioned in the decree, the decree-holder filed on 3-8-1951, an application for execution of the decree. In the petition for execution the decree-holder prayed for a variety of reliefs including a prayer for delivery of the said specific properties and for attachment of a decree obtained by the judgment-debtor. The execution petition was registered on 3-8-1951, and on the prayer of the decree-holder for attachment of a decree obtained by the judgment-debtor the Court directed the issue of a notice to the judgment-debtor to show cause why the said decree should not be attached. The Court further directed provisional attachment of the said decree. The judgment-debtor appeared in pursuance of the notice to show cause and prayed for time. Later on, on 18-9-1951, the decree-holder made a prayer for a direction on the judgment-debtor to deliver the said properties. This matter came up for hearing before the Court on 5-11-1951. The order of that date records that the Court heard the pleaders of the parties and directed the judgment-debtor to furnish security for the value of the moveables described in Schedule D, by 26-11-1951. It was further directed that failing compliance with this direction a writ for possession of the said moveables will issue. On 5-12-1951, the pleaders of the parties were again heard and the Court directed stay of issue of a writ of possession. The judgment-debtor was allowed time to furnish security till 20-12-1951. On 20-12-1951, as the judgment-debtor failed to furnish security, the Court directed the issue of a writ of passession. The judgment-debtor took no steps to have the order of 20-12-1951, directing issue of a writ of possession vacated by appropriate proceedings. The judgment-debtor, however, came up with a petition of objection under Section 47, Civil P. C. The relevant objection which has been pressed before us is that it was not open to the decree-holder to pray for simultaneous execution of the decree by the issue of a writ for seizure of the property and for attachment of the judgment-debtor's property. The petition of objection filed by the judgment-debtor was heard by the learned Subordinate Judge and was dismissed on 16-1-1952. It is the propriety of this order which has been challenged in this appeal.

3. Mr. Lala Hemanta Kumar who has appeared in support of the appeal has raised only two contentions. In the first place, he has contended that in a decree passed in accordance with the provisions of Order 20, Rule 10, Civil P. C. the decree-holder must, in the first instance, exhaust his remedy for delivery of the specific moveable property before be can pray for relief by way of arrest of the person of the judgment-debtor or attachment of his property.

4. In support of this contention the learned Advocate has relied on two decisions of this Court, namely, the case of -- 'Balmukunda Bisseswarlal v. B.N. Rly. Co., Ltd.', : AIR1927Cal652 and the case of -- 'Shivaprasad Sing v. Prayag Kumari', : AIR1935Cal39 . I shall deal with these cases before I refer to the relevant provisions of the Code bearing on this question. The decision in the first of the above two cases laid down that holders of a decree in terms of Order 20, Rule 10 of the Code cannot execute the money part of it without having recourse to the procedure prescribed by Order 21, Rule 31 of the Code.

5. I fail to see how the above decision assists the appellant in the present case. The proposition of law laid down in the above decision does not say in terms that the holder of a decree in terms of Order 20, Rule 10, Civil P. C. cannot have simultaneous execution of the decree by way of seizure of the property and attachment of the properties of the judgment-debtor. Moreover, the facts which came up for adjudication in the above case are entirely different. In that case a decree was passed for compensation for damages done to the properties of the decree-holder by the judgment-debtor which was assessed at Ra. 3500/-. The decree then provided for delivery of certain moveables belonging to the decree-holder and went on to add that if the moveables were not delivered the judgment-debtor would have to pay a sum of Rs. 500/-. This decree was executed by the decree-holder on a statement made by him that the decree-holder had demanded delivery of the goods from the judgment-debtor which the judgment-debtor had failed to comply and that as such the decree-holder prayed for recovery of Rs. 500/-. This Court came to a finding of fact that there was no demand by the decree-holder as aUeged in the execution petition and in that view this Court held that the execution of the decree for recovery of Rs. 500/- for failure to comply with the direction for delivery of the moveables could not be allowed.

6. The case of -- Shivaprasad Singh (B)' merely followed the decision in the above case of -- 'Balmukunda Bissweswarlal (A)'. In my opinion, therefore, the cases cited do not purport to lay down the proposition that the decree^ holder cannot in a petition filed by him for execution of a decree under Order 20, Rule 10, Civil P. C. claim relief both for recovery of the moveables and for attachment of the judgment-debtor's properties.

7. The answer to this question must be found in the terms of Order 21, Rule 31, Civil P. C. This rule supplanted Section 259, Civil P. C., 1882, with some modifications. I shall first interpret the terms of Order 21, Rule 31 of the Code. The relevant provision of Order 21, Rule 31(1) provides that where the decree is for recovery of any specific moveable, the decree may be executed, if practicable, by the seizure of the moveables and by the delivery thereof to the party to whom it has been adjudged or by the detention in the civil prison of the judgment-debtor or by attachment of his properties or by both.

8. The sub-rule on its plain reading contemplates more than one of the modes of execution mentioned in the sub-rule. This is apparent from the use of the words 'or by both'. The fact that three alternative modes of execution are stated in the sub-rule does not indicate that only one of the modes should be availed of by the decree-holder first and before that is exhausted the decree-holder is not entitled to apply for execution in the other modes referred to in the sub-rule. Such an interpretation would render unnecessary, the use of the words 'or by both' occurring in that sub-rule. In my view, the Legislature clearly intended that the decree-holder would have the option of pursuing his remedy by way of execution in any one of the three modes mentioned therein or in more than one of such modes.

9. That that is the true view of Order 21, Rule 31 (1) is supported by the two Sub-rules 2 and 3 which follow.

10. The first part of Sub-rule 2 envisages a state of things where the attachment of the judgment-debtor's property is in force for three months and the judgment-debtor has not obeyed the decree for delivery of specific moveables. In such a case the Court may, on, the application of the decree-holder, sell the attached, property for recovery of the sum mentioned in the decree, or, if the decree is silent therein, for such compensation as may be assessed by the executing Court.

11. Sub-rule 3 provides for cessation of the attachment of the judgment-debtor's property in two cases, namely, (a) where the judgment-debtor has obeyed the decree and (b) where the attachment has remained in force for three months and the decree-holder has not applied for sale of the attached property or his application for such sale, if made, has been dismissed.

12. These two sub-rules, in my opinion, contemplate a state of things where the attachment. of the property is in force and there is also a prayer in the execution petition for specific recovery of the moveable properties.

13. In interpreting the above rule one must bear in mind the well-settled principle that where the law prescribes more than one mode of execution, the option to choose the particular mode by which the decree-holder will seek his remedy rests with him. The above power of the decree-holder is, however, subject to the exercise by the Court of a judicial discretion vested in it under Order 21, Rule 21 of the Code.

14. It must also be remembered that the rules of procedure are mere hand-maids of justice and that the Court should aid the successful litigant in obtaining the relief to which he has been declared to be entitled under the decree of the Court.

15. I cannot accede to the submission made on behalf of the judgment-debtor that the decree-holder should be compelled to exhaust his remedy for delivery of the specific moveables before he can be permitted to seek his remedy by the other modes mentioned in Order 21, Rule 31.

16. A similar contention in regard to the interpretation of Order 21, Rule 30 of the Code which provides for the execution of a decree for payment of money by arrest of the judgment-debtor or by attachment and sale of bis property or by both, was negatived by a Bench of the Lahore High Court in -- 'Hargobind Kissenchand v. Hukum Sing', AIR 1926 Lah 110 (C). At p. 111 Shadi Lal C. J. made the following observation:

'If' (the Court), 'has no authority to decline to make an order for committal to prison on 'the' ground that the decree-holder should proceed: in the first instance against the property of the judgment-debtor.'

In my opinion, the decree-holder is clearly entitled to apply for simultaneous execution of a decree passed in terms of Order 20, Rule 10, Civil P. C. by more than one of the modes of execution specified in Order 21, Rule 31 of the Code.

17. I would also point out that under the Civil Procedure Code of 1882 a somewhat similar question arose for decision in -- 'Manavikraman v: Moyankutti', 13 Mad L J 444 (D). This case was cited with approval in the two Calcutta decisions to which I have already referred. The relevant observation in the judgment of the Madras Court is in these terms:

'It is, therefore, only when after putting in force Section 259, Civil P. O. it is found that it is impossi-ble to obtain the property ordered to be delivered that the alternative amount in the, decree comes into operation.'

18. In that case the decree-holder was the appellant before the High Court. The appeal succeeded. The judgment of the lower Appellate Court was reversed and that of the trial Court restored. What was the precise form of the order made by the trial Court or by the lower Appellate Court does not appear in the report which is extremely meagre.

19. It must be remembered that Section 259 of the Code of 1882 was in slightly different terms. Section 259 of the Code provided inter alia for execution of a decree for recovery of specific moveables either by seizure of such moveables and delivery thereof to the decree-holder or by arrest or by attachment of the judgment-debtor's property or by both arrest and attachment of the judgment-debtor's property. The provision in Order 21, Rule 31 is somewhat dissimilar. The provision in Order 21, Rule 21 omits the qualifying words 'arrest and attachment of the judgment-debtor's property' which followed the words 'or by both' in Section 259 of the Code of 1882. This decision, therefore, is of no assistance in the present case. The first contention raised on behalf of the appellant must therefore be overruled.

20. I may observe that Mr. Mitter who has appeared for the decree-holder respondent pressed us not to decide this question on the ground that in the Court below the judgment-debtor did not press this point. There is considerable force in this contention. As the objection was raised in the execution petition, we have preferred to dispose of the contention raised on behalf of the judgment-debtor also on its merits.

21. The second contention on behalf of the appellant was that the executing Court had no power to direct a conditional attachment of the judgment-debtor's property. As I have already pointed out, the order for conditional attachment was made long ago and thereafter in spite of an order by the executing Court requiring the judgment-debtor to show cause he has not chosen to do so. It also appsars that there was an order for furnishing security. The judgment-debtor took time to comply with it but did not do so. There was an order for issue of a writ for the seizure of the moveables decreed. The judgment-debtor did not at that stage raise any objection that the conditional attachment should be withdrawn. No attempt was made to have the conditional order of attachment set aside by appropriate proceedings nor was the previous order of the Court directing issue of a writ for delivery of possession challenged by a direct appeal. This objection, therefore, would not be available to the judgment-debtor at this stage.

22. But even if the objection could be raised in this appeal I am clearly of opinion that the executing Court possessed the power to direct a conditional attachment in the facts of the present case. I have already held that it was competent for the decree-holder to pray for simultaneous execution by the issue of a writ for seizure of the specific moveables as also by a writ for attachment of the judgment-debtor's property in this case a decree obtained by the judgment-debtor against the Railway Administration.

23. The powers of an executing Court to enforce execution are set forth in Section 51, Civil P. C. The section provides for execution in the following modes: (a) by specific delivery of property; (b) by attachment and sale or sale without attachment of the judgment-debtor's property; (c) by arrest and detention in prison; (d) by appointment of a, receiver; or (e) in such other manner as the nature of the relief granted may require. This power is subject to such conditions and 'imitations as may be prescribed. In the present case, as I have already indicated, there is no provision which bars the power of the Court to order conditional attachment. As the Court has in the facts of this case the power to direct attachment, as an aid to the effective exercise of such power the Court is empowered to direct conditional attachment so that the exercise of the power of ordering attachment may not be rendered infructuous. In my opinion, the second contention has also no force.

24. In the result, this appeal fails and is dismissed with costs.

Debabrata Mookerjee, J.

25. I agree.


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