http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

PETITIONER: CHOUTHI PARSAD GUPTA

       Vs.

RESPONDENT: UNION OF INDIA AND ORS.

DATE OF JUDGMENT: 31/08/1966

BENCH: WANCHOO, K.N. BENCH: WANCHOO, K.N. SHAH, J.C. BACHAWAT, R.S.

CITATION:  1967 AIR 1080            1967 SCR  (1) 207

ACT: Code  of Civil Procedure (Act V of 1908), s. 145 and  O.XXI, r.  46(1)  -Prohibitory order under the rule-If  s.  145  is attracted.

HEADNOTE: The  appellant, who was the decree-holder, applied  for  the execution  of  the  decree.   The  Sub-Divisional   Officer, Military  Engineering  Service, was in  possession  of  some movable property of the judgment-debtor.  The Court  ordered attachment  under 0. XXI, r. 46(1), Civil Procedure Code  by prohibiting the Sub-divisional Officer from handing over the property  to the judgment-debtor.  Thereafter,  in-stead  of following  the  proper  price(lure which  was  to  sell  the property  under O.XXI, r. 64 and then pass an order for  its delivery  under O.XXI, r. 79(2), the Court ordered the  Sub- divisional Officer to produce the property, and, when it was not  produced, proceeded under s. 145 of the  Code  treating the Union of India as the principal judgment-debtor. HELD:     Section 145 of the Code was not applicable to  the cage.   That  section  only applies when  a  person  becomes liable  as  a surety and the execution Court  was  wrong  in holding  that  the Sub-divisional Officer  became  a  surety simply  because attachment had been made by the  prohibitory order under O.XXI, r. 46(1). [209-H, 210 B-C]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 556 of 1964. Appeal from the judgment and order dated March, 24, 1961  of the  Assam  and Nagaland High Court in M. A. (F) No.  29  of 1956. B.   Sen and D. N. Mukherjee for the appellant. S.   G. Patwardhan and R. N. Sachthey, for the respondent. The Judgment of the Court was delivered by Wanchoo,  J.-This is an appeal on a certificate  granted  by the  Assam High Court and arises in the  following  circums- tances.   The appellant had obtained a money decree  against Thakur  Prosad Joyaswal and others in 1947.  As  the  decree remained  unsatisfied  it was transferred from  Calcutta  to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

Gauhati  for execution.  On May 2, 1953, an application  was made  for  execution in the court at Gauhati  by  attachment under  0.  XXI,  r. 46 of the Code  of  Civil  Procedure  of certain  movable property of the judgment-debtors which  was said to be in the possession of the Sub-Divisional  Officer, Military Engineering Service, Pandu.  Consequently an  order was  issued  under O.XXI r. 46 (1)(c)(iii)  prohibiting  the Sub-Divisional Officer from parting with 208 the  property of the judgment-debtors.  It may be  mentioned that  the  Sub-Divisional  Officer  is  subordinate  to  the Garrison  Engineer, Shillong.  Though  certain  applications were  put in on behalf of the Sub-Divisional Officer  before the  court, it was only on February 1, 1954 that the  Acting Garrison Engineer, Shillong stated before the court that the movable property in question (i.e. 41 R.S. joists) had  been sold  and  delivered  as far back as November  22,  1951  to Messrs.  Ghunilal-Kanhaiyalal of Palasbari.  This  objection was  considered  by  the  execution court  and  it  held  on September  25,  1964 that this belated  statement  that  the property  in question had been sold as far back as  November 22,  1951  could  not  be  believed.   The  execution  court therefore  dismissed the objection and ordered execution  to proceed. Thereafter  orders  were issued for the  production  of  the joists but they were not produced.  Thereupon the  appellant applied  that the Union of India should be considered to  be the principal judgment-debtor and execution should be levied against the Union of India.  The Union of India objected  to this  and  on April 21, 1956 the objection of the  Union  of India  was dismissed and the execution court held  that  the Union  of India be treated as the principal  judgment-debtor and  be  made liable to the extent of the  proceeds  of  the attached  joists.   Later on the same day, a  further  legal argument  was raised on behalf of the Union of India to  the effect  that as there was no surety bond the Union of  India could not be treated as the principal judgment-debtor.  This objection  was heard and finally the court ordered on  April 28, 1956 that even though there was no surety-bond  executed on behalf of the Union ,of India it was liable as a  surety. Thereupon  the  Union of India appealed to  the  High  Court against the order of April 28, 1956. The  High Court allowed the appeal and set aside  the  order ,of  the  execution court holding that no  action  could  be taken against the Union of India under S. 145 of the Code of Civil   Procedure  upon  which  the  execution   court   had apparently  relied.  Thereupon the appellant asked  for  and obtained a certificate from the High Court, and that is  how the matter has come before us. We  are  of opinion that there is no force in  this  appeal. Order  XXI  r.  46(i) provides that in  the  case  of  other movable  property  not in the possession  of  the  judgment- debtor,  except property deposited in or in the  custody  of any  court, the attachment shall be made by a written  order prohibiting the person in possession of the same from giving it  over to the judgment-debtor.  The necessary  prohibitory order  had been issued by the execution court in  this  case with respect to 41 joists -and had been received by the Sub- Divisional Officer.  Such a prohibitory order is  sufficient for the purpose of attachment, though the 20 9 property   mentioned  therein  is  not  actually  taken   in possession by the Court.  After attachment has been made  in the  manner provided by r. 46 the next step that  the  court has to take is to order sale of the property attached.  Then

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

comes  O.XXI  r. 79 which provides that where  the  property sold  is movable property of which actual seizure  has  been made, it shall be delivered to the purchaser [see r. 79(1)]. But  where  the  property sold is movable  property  in  the possession  of some person other than  the  judgment-debtor, the  delivery  thereof  to the purchaser shall  be  made  by giving  notice to the person in possession  prohibiting  him from  delivering  possession of the property to  any  person except  the purchaser [see r. 79 (2)].  In the present  case there  was no actual seizure of the property but  attachment had  been made under O.XXI r. 46 (1).  The proper  procedure for the court to follow was to sell the property under O.XXI r.  64 and then pass an order under O.XXI r. 79 (2) for  its delivery in the manner provided therein.  The court  however went  on  asking the Sub Divisional Officer to  produce  the property and when it was not produced it proceeded under  s. 145  of the Code.  We agree with the High Court that s.  145 has no application in the present case.               Section 145 runs thus :               "Where any person has become liable as surety-               (a)   for the performance of any decree or any               part thereof, or               (b)   for  the  restitution  of  any  property               taken in execution of a decree, or               (c)   for the payment of any money, or for the               fulfilment  of  any condition imposed  on  any               person,  under  an order of the court  in  any               suit or in any proceeding consequent thereon,               the  decree or order may be  executed  against               him,  to the extent to which he  has  rendered               himself   personally  liable  in  the   manner               therein  provided  for the  execution  of  the               decrees   and  such  person  shall,  for   the               purposes  of appeal be deemed a  party  within               the meaning of s. 47:               Provided that such notice as the court in each               case  thinks sufficient has been given to  the               surety." A bare perusal of s. 145 shows that it applies when a person has  become  liable as surety.  Now the mere  fact  that  an attachment  was made of 41 joists said to be lying with  the Sub-Divisional Officer by the issue of the prohibitory order under  O.XXI r. 46 does not make the Sub Divisional  Officer or  the Union of India a surety for the performance  of  the decree  which  was in execution.  There was no  surety  bond taken from the Sub-Divisional Officer and the joists 2 1 0 were not actually seized by the court and handed over to the Sub Divisional Officer as suparddar on the basis of a surety bond.   If that had been done some question may have  arisen whether  the Sub-Divisional Officer did become a surety  for the  performance of the decree or part thereof.   But  where merely  a prohibitory order is issued under 0. XXI r.  46(1) and  attachment  is  made in that manner, there  can  be  no question  of  the person to whom the  prohibitory  order  is issued becoming a surety for the performance of the  decree. We  therefore agree with the High Court that s. 145  of  the Code was not applicable to this case and the execution court was  completely  wrong in holding  that  the  Sub-Divisional Officer  became a surety simply because attachment had  been made in the manner provided in O.XXI r. 46 (1),.  The appeal fails  and  is hereby dismissed with costs to the  Union  of India. V.P.S. Appeal dismissed.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

211