Dungarmall Agarwalla vs Amiya Kumar Chattopadhya and Others

H. Deka, C.J.—This rule was obtained by Dungarmall Agarwalla who stood surety for producing certain motor car which was attached on an application under Order 38 Rule 5 of the CPC for attachment before judgment. The present opposite party No. 1 Amiya Kumar Chattopadhya, instituted Money Suit No. 14 of 1947 in the Court of the Subordinate Judge, Dhubri, for recovery of a sum of Rs. 1,647/- and on and application for attachment before judgment, the car belonging to the defendant, who is opposite party, No. 2 M/s. Mazumdar BrOrs. , was attached and the same was kept in the zimma of the petitioner Dungarmall Agarwalla.

Finally a compromise decree was passed against the defendants for a sum of Rs. 1,647 on 7th July 1950. Thereafter the decree-holder put in. execution the money decree in Execution Case No. 71 of 1953 in the Court of the Subordinate Judge but that was dismissed for default. A second execution case was started--being Money Execution Case No. 27 of 1956--in the Court of the Subrdinate Judge and in execution of that decree notice was issued on the petitioner Dungarmall Agarwalla to produce the car that was put in his zimma or in the alternative to pay the decretal amount in Court.

Dungarmall Agarwalla filed an objection to the effect that he was no longer liable since the execution case No. 71 of 1953 was dismissed, and, therefore, the attachment of the property did not subsist by virtue of Order 21 Rule 57 of the Code of Civil Procedure. The learned Subordinate Judge upheld the contention and held that the decree could not be executed for the amount against Dungarmall Agarwalla. On an appeal filed by the decree-holder, the learned Additional Judge reversed that order and directed that the execution might proceed against Dungarmall Agarwalla by virtue of Order 21-A Rule 11 of the Code of Civil Procedure. It is against this order that the rule was obtained.

Mr. K. P. Sen appearing for the opposite party-decree holder argued that no revision petition would lie but an appeal would be competent. In view, however, of the fact that on merits I am going to dismiss the application, I do not propose to examine the preliminary objection raised. The learned Additional Judge has dealt with the facts-in detail and. the only point that arises is whether the case is governed by Order 21 Rule 57 of the. CPC and the attachment should be considered to be released in regard to the motor car put in the zimma of the petitioner Dungarmall Agarwalla. There is marked difference in the view held by the Calcutta and the Allahabad High Courts and the Madras High Court and some other, High Courts that followed the Madras decision.

I accept the. logic and put much reliance on the case of Shibnath Singh Ray Vs. Saberuddin Ahmed, decided by Rankin C. J. and Mukerji, J. I fully agree with the view ex pressed in that case that an attachment of a property before judgment does not stand on par with, the property attached in execution of a decree, in which case alone the provision of Order 21 Rule 57 Civil,. Procedure Code applies. The Madras view was considered in this case, and, their Lordships disagreed with the view taken by the Madras High Court. The relevant extract in the judgment High as follows:

Rule 57, Order 21 was a new provision introduced in 1908. It is evident from the language of the rule itself, and it is still more evident from the circumstances under which it was passed, that it was intended to provide a remedy for the grievance or inconvenience winch is apt to arise, where, after an attachment in execution, the application for execution cannot further be proceeded with by reason of the decree-holder''s default.

Their Lordships in this connection further went on to observe:

In these circumstances, it seems reasonably clear to me that it is no part of the intention of this rule to say that an attachment before judgment, which existed before any application could be made in execution, and which prima facie would continue to have effect if no application for execution had been made, should fall to the ground merely because a subsequent application for execution has come to nothing.

I, therefore, do not think it necessary to dilate upon as I am in full agreement with the view expressed by their Lordships in this case. Order 21-A Rule 11 which came into existence by an amendment of the Act in 1933 categorically provides.

In the event of the custodian of attached property failing, after due notice, to produce such property at the place named to the officer deputed for the purpose .... he shall be liable to be proceeded against for the enforcement of his bond in the execution proceedings.

Therefore, this will also suggest that the liability of the zimmadar remains either to produce the property or to pay the amount for which he stood surety, and, in either case, the application of the petitioner Dungarmall Agarwalla has no substance and it is liable to be dismissed.

The rule is accordingly discharged. Hearing fee is assessed at Rs. 51/.