RAMPALLI RAMACHANDRUDU Vs. SAIT BAKRAJ GULABCHAND FIRM
HIGH COURT OF MADRAS
SAIT BAKRAJ GULABCHAND FIRM
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Govinda Menon, J. -
(1.) These appeals arise out of the orders passed by the District Judge of East Godavari extending the time for a precept issued to the Court of the District Judge of West Godavari to keep in attachment properties belonging to the appellant who is a judgment-debtor in the suit put of which the application for precept and its extension was made. Mr. P. V. Vallabhacharyulu for the respondent raises a preliminary objection that an order directing a precept is not appealable, as it is not one relating to execution, discharge or satisfaction of the decree. For this argument he relies upon the observations of Sen J. in -- 'Rai Kissenji v. Sri Kissen', ILR (1939) 2 Cal 370. The learned Judge observes as follows:
"After there is an attachment pursuant to a precept under Section 46, C. P. C., further steps have to be taken before the decree can be executed. First, there must be an application under Section 39 of the Code to the Court, which passed the decree, for transmission of the decree to the Court which is to execute the decree. Then there must be an application for execution of the decree to the Court to which the decree has been transferred and the application must be in tabular form as provided in Order 21, Rule 11, C. P. C., when the executing court is not the High Court. If the Court, to which the decree has been transferred is the High Court, then the application for execution must be in form I of the rules of this court and must contain, in addition to the particulars mentioned in Order 21, Rule 11 certain other particulars (vide Chapter 17, Rule 10 of the Original Side rules). It is thus clear that after an attachment under a precept there must be an application for execution in the proper form and it is only upon such application that execution can issue. The order issuing a precept is, therefore, not an order directing execution and the attachment under a precept is not an attachment in execution proceedings. In the case of -- 'Kasiswar De v. Aswini Kumar', 90 Ind Cas 527 : AIR 1926 Cal 249 it was held that an application for an attachment under Section 46, C. P. C. cannot be regarded as an application for execution. This was a case regarding rateable distribution, but the principle underlying this view applies."
(2.) What happened there was when a precept was directed to be issued to the Sheriff of Calcutta by the Civil Court of Benares and the properties in Calcutta were kept in attachment, the Sheriff claimed poundage for having the attachment made and the question was whether he was entitled to poundage at all. The learned Judge in considering that question found that a precept under Section 46 is not a step in the execution proceedings but is merely a step taken to facilitate execution. Even if a precept has been ordered, still the decreeholder has to apply to the court which passed the decree under Section 39, C. P. C. for transmitting the decree and thereafter an application under Order 21, Rule 11, C. P. C. has to be filed to the court to which the precept has been directed. We agree with the learned Judge that an order of precept under Section 46 is one which tends to facilitate the execution of the decree and not a step in execution proceedings. The same view has been taken by the Calcutta High Court in an earlier case in -- 'Kasiwar De v. Aswini Kumar', 90 Ind Cas 527 (Cal) where Greaves and Cuming JJ. held that an application for attachment Rampalli Ramachandrudu vs. Sait Bakraj Gulabchand Firm and Ors. (14.02.1952 - M... Page 2 of 3 under Section 46, C. P. C. cannot be regarded as an application for execution. The learned Judges referred to earlier decisions in -- 'Pallonji Shapurji v. Edward Vaughan Jordan', 12 Bom 400 and other cases. We agree with the principles set forth in the Calcutta cases referred to above.
(3.) We are, therefore, of opinion that the appeals are not maintainable and they are dismissed with costs, one set.;
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