SRI H. NAIK, O.L. PURI BANK Vs. SRI NARAYAN MISRA
HIGH COURT OF ORISSA
Sri H. Naik, O.L. Puri Bank
Sri Narayan Misra
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Narasimham, J. -
(1.) THE simple question for consideration is whether the decree -holder should give a list of the movable properties of the judgment -debtor that are in his possession so as to enable the executing Court to specify the various items of movable properties while issuing a writ of attachment under Order 21, Rule 43 Code of Civil Procedure. The Registrar seems to have relied on Form No. 8 described in Appendix E to Schedule I of the Code of Civil Procedure which is as follows:
ToThe Bailiff of the Court
Whereas was ordered by decree of this Court passed on the day of 19, in suit No. of 19 to pay to the Plaintiff the sum of Rs. as noted in the margin; and whereas the said sum of Rs. has not been paid. These are to command you to attach the movable property of the said as set forth in the schedule hereunto annexed or which shall be pointed out to you by the said and unless the said shall pay to you the said sum of Rs. together with Rs. the cost of this attachment, to hold the same until further orders from this Court.
You are further commanded to return this warrant on or before the day of 19 with an endorsement certifying the day on which and manner in which it has been executed", why it has not been executed.
Doubtless it is desirable to give a list of the movables of the judgment -debtor in his possession if the decree -holder could furnish correct information on the subject. But too much reliance should not be placed on Form No. 8 inasmuch as that is a general form dealing with warrants of attachment of movable property under Order 21, Rule 30 Code of Civil Procedure. The other provisions of Order 21 Code of Civil Procedure. should also be looked into in this connection. The question in the end is whether an executing Court can insist as a matter of law that the decree -holder must give a list of the movables in the possession of the judgment -debtor for the purpose of attachment.
(2.) ORDER 21, Rule 11(2) gives a full description of the particulars which should be mentioned in an application for execution. Clause (j) of that sub -rule says that the application for execution shall contain in a tabular form particulars regarding the mode in which the assistance of the court is required that is to say, whether by attachment and sale or by sale without attachment of any property. That rule does not, in express terms, say that where execution is sought for by attachment and sale of the movable property in the possession of the judgment -debtor, a list of such property should be furnished. On the other hand, Rule 12 of Order 21 expressly says that where an application is made for the attachment of any movable property of the judgment -debtor not in his possession an inventory of the property to be attached containing a reasonably accurate description of the same must be furnished. The obvious inference is that where the movable property that is sought to be attached is in the possession of the judgment -debtor no such list is required by law. This was the view taken by the Calcutta High Court in Howrah Municipality v. Shaikh Mosafir : A.I.R. 1938 Cal. 235 and also by the Nagpur High Court in Nathmal v. Balkrishna, A.I.R. 1941 Nag. 152. It was, however, urged by Mr. A. Das for the judgment -debtor that the only implication arising out of Order 21, Rule 12 Code of Civil Procedure. was that where movable property was not in the possession of the judgment -debtor the inventory should contain a reasonably accurate description of the movable property whereas if the movable property is in the possession of the judgment -debtor the list need not contain such an accurate description of the movable property; but in any case there should be a list of the movable property that is sought to be attached. He has, however, not been able to cite any authority in support of this view. He cited Khodaiitulkubra v. Ugrah Singh : A.I.R. 1944 Pat. 214 Vallabhdas v. Kantilal, A.I.R. 1947 Born. 430 and Bairanglal Poddar v. Sitaram Kedia, A.I.R. 1949 Cal. 457. These are clearly distinguishable. The first two decisions do not expressly deal with a case of movable property and have, therefore, no application to the present case. Doubtless, the case of Bhajranglal, A.I.R. 1949 Cal. 457 dealt with a case of attachment of movable property. There, however, the question for decision was whether the decree -holder was liable for damages for wrongful attachment where in execution of the writ of attachment of movable property of the judgment -debtor on the identification of the decree -holder some other property was wrongfully attached. The Calcutta High Court emphasised the distinction between the English Law and the Indian Law in this respect and pointed out that whereas in the English Law of procedure specification for identification of the goods to be attached was not required, in the Indian Law list of the goods to be attached is given in the warrant of attachment and the decree -holder or his agent accompanies the bailiff and identifies the judgment -debtor's goods at the time of attachment. This decision, however, does not help us in the present case because we are not primarily concerned with the respective liability of the bailiff and the decree -holder where wrongful attachment has, in fact, taken place. The simple question is whether the executing Court can refuse to issue a writ for attachment of the movable property in the possession of the judgment -debtor when the decree -holder is unable to give a list of such movable property.
(3.) THERE is an interesting discussion on the subject in a very recent decision of the Alahabad High Court in S. Mohd. Liaq v. Ramii : A.I.R. 1952 All. 618. There it was not pointed out that where the movable property that is sought to be attached was in the possession of the judgment -debtor no inventory was necessary because all movable properties of the judgment debtor were liable to attachment. Where, however, the movable property is not in the possession of the judgment -debtor himself but in the possession of the legal representative an inventory of the movables which the decree -holder want to attach should be given. With respect I would follow this decision. Where the movable property that is sought to be attached is in the actual possession of the judgment -debtor the executing Court cannot insist that a list should be furnished for the purpose of issuing the writ of attachment. Doubtless, if the decree -holder could give a list in respect of such movables as have come to his knowledge, that would facilitate the statement. But Form No. 8 of Appendix E to Schedule I of the Code of Civil Procedure. quoted above give two alternatives to the bailiff. He should attach the movables of the judgment -debtor as set forth in the Schedule annexed to the warrant or such -movable's as may be pointed out to him by the decree -holder. Therefore, even if no list of movables of the judgment -debtor is furnished, the decree -holder or his agent who accompanies the bailiff would point out the movable property in the possession of the judgment -debtor for the purpose of facilitating attachment by the bailiff who will thus have no difficulty in attaching the same j the responsibility for wrongful attachment being entirely with the decree -holder who alone is answerable to the true owner of the goods seized for damages for wrongful attachment.;
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