Decided on October 07,1952

Arankandath Sankaran Nair And Anr. Appellant
A. Doraiswamy Chettiar And Ors. Respondents


Subba Rao, J. - (1.) THE only question in this appeal is whether the splints and veneers can be attached under Order 38, Rule 5, Civil P. C. The facts are simple and may be briefly narrated. The respondent instituted" O. S. No. 3 of 1945 on the file of the Court of the Subordinate Judge of Ottapalam for possession of match factory and for mesne profits. After obtaining a decree therein, he took possession of the factory and applied for ascertainment of mesne profits. He also applied for attachment before judgment of splints and veneers owned by defendant 1. It was contended, 'inter alia' that the said articles were not liable to attachment on the ground that defendant 1 had no disposing power over the said articles. The learned Subordinate Judge rejected the contention and directed the attachment of the said articles. The defendants have preferred the above appeal.
(2.) MR . Variar the learned counsel for the appellants raised before us the point which his clients had unsuccessfully raised in the Court below. It is contended that the licence, custody and sale of the articles are regulated by the rules framed under the Central Excise and Salt Act and that under the said rules they cannot be sold except with the previous consent of the Excise Officer. So it is argued that defendant 1 has no disposing power over the articles and therefore the articles are not liable to be attached. The relevant provisions of the Civil Procedure Code and the rules made under the Central Excise and Salt Act may now be read. Section 60(1), Civil P. C. runs thus: "The following property is liable to attachment and sale in execution of a decree, namely.......... goods, ......all other 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, whether the same be held in the name of the judgment -debtor or by another parson in trust for him or on his behalf." Under Rule 174 of the Central Excise Rules "every manufacturer, trader, dealer, or person hereinafter mentioned, shall be required to take out a licence......and shall not conduct his business in regard to such goods otherwise than by the authority, and subject to the terms and conditions of a licence granted by a duly authorised officer in the proper form......" Rule 60 runs thus: "Where the splints and veneers are obtained from a licenced manufacturer or importer of such goods, an indent shall be prepared in duplicate and counter -signed by the officer at the factory. The supplier shall return one copy to the officer with an endorsement stating the quantity actually supplied. Each consignment shall be produced before the officer at the factory and if the quantity received differs from the quantity stated in the supplier's endorsement, the supplier shall be required to explain the discrepancy." It will be seen from the aforesaid provisions that the licensee is the owner of the articles. In the interests of public, their custody, sale and purchase are regulated under the rules framed by the Government under the Central Excise and Salt Act. We have searched in vain to find any provision either in the Act or the rules framed thereunder prohibiting the sale of the said articles. The rules only regulate the mode of sale. If so, it follows that the licensee has a disposing power within the meaning of Section 60, Civil P. C.
(3.) BUT the learned counsel for the appellants relied upon certain decisions in support of his contention. 'Radhakrishna Beni Prasad v. : AIR1940All24 (A) is a case arising under the Electricity Act. Under that Act, in case a licence had been revoked certain provisions laid down by Section 5 of the Act had an imperative effect, and under those provisions the licensee had the power of disposing of all lands, buildings, works, materials and plant belonging to the undertaking in any manner which he might think fit only if Clause (f) of the section applied to the case. On a construction of the provisions of the Act, the learned Judges held that the defendant in that case had a disposing power only under the provisions of Clause (f) of Section 5 and as the contingency contemplated by that clause had not arisen, he had no disposing power and therefore the undertaking was not liable to be attached. As the defendant had no disposing, power, the learned Judges rightly held that the undertaking was not liable to be attached. In - - 'Ramdass v. : AIR1931Pat97 (B), Rowland J. has held that Section 12A , Encumbered Estates Act read with Section 60, Civil P. C. prevents a property released under Section 12 from being sold in execution of a money decree obtained against the holder of such property without the sanction of the Commissioner. On a construction of the relevant provisions the learned Judge pointed out that under the Act a proprietor had no right to sell the property extending beyond his lifetime, except with the consent of the Commissioner. Having regard to the object and express provisions of the Act, the learned Judge held that the proprietor had no disposing power. A Bench of the same Court consisting of Macpherson and Dhavle JJ. accepted the correctness of the aforesaid judgment in - - 'Khitnarain v. : AIR1931Pat364 (C) and also observed: "The object of the Act of 1876 is to provide for the relief of 'holders' of land in Chota Nagpur who may be in debt and whose Immovable property may be subject to mortgages, charges and liens, and the method adopted is to vest the management of the property of a holder in an officer appointed by the Commissioner and termed the manager whose function is to clear off the encumbrances after which the property is released to the holder. For reasons of public policy the property is to be saved to the holder." In view of the object underlying the Act and the provisions thereof, the learned Judges found that the holder had no disposing power over the property and therefore it was not liable to be attached. They have succinctly stated the proposition thus: "The measure of liability to involuntary alienation is the power of voluntary transfer." The aforesaid judgments only recognised and applied the incontestable proposition that a property of a judgment -debtor is not liable to be attached if he has no disposing power over the same. Whether a judgment -debtor has a disposing power in respect of a particular property is a question to be decided in each case.;

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