H.N. Seth, J. - (1.) THIS second appeal by the objector has come up before this Bench on a reference made by a learned single Judge of this Court. Main question that arises for consideration in this case is whether a right to get a property reconvened is a property which can be attached and sold in execution of a decree.
(2.) SRI Mool Narain father of the Appellants sold two houses Nos. 53 and 54, Chowk Ganga Das by means of a registered sale deed dated 10 -10 -1958 to Sri Sudrisht Narain. On the same day he executed a rent note agreeing to occupy the two houses as tenant. Thereafter a separate agreement was also entered into under which Sri Mool Narain was given a right to repurchase the two houses within a period of ten years on payment of the sale consideration and the rent if any outstanding on the date of repurchase. Subsequently Sri Sudhrisht Narain obtained a money decree against Sri Mool Narain on 15 -7 -1965. Mool Narain died on 18 -1 -1966 and the decree holder put his decree into execution against the Appellants who were the sons of Mool Narain on 24 -4 -1966, by attachment and sale of the right of repurchase of Mool Narain, acquired under the agreement dated 10 -10 -1965. The Appellants were impleaded as the right to repurchase under the agreement dated 10 -10 -1965 had devolved upon them after the death of Mool Narain. Before the decree could be put in execution Sri Deep Narain son of Mool Narain served a notice upon Sri Sudhrisht Narain for I enforcing his right of repurchase under the agreement and filed a suit for specific performance of the contract. Appellants filed objections to execution of the decree Under Section 47 of the Code of Civil Procedure contending that the right of Sri Mool Narain to get the property reconveyed was not attachable and saleable in execution of the decree and that after the suit for specific performance had been filed the property in dispute became custodia legis and as such also it could not be sold in execution of the decree. Both these objections were repelled by the executing court. Appellants went up in appeal which was also dismissed. They have now filed the present second appeal and have canvassed both the points again before us.
(3.) SRI Raja Ram Agarwal, learned Counsel appearing for the Appellants contended that Under Section 60 of the Code of Civil Procedure it was only a tangible, movable or immovable property that could be made the subject matter of attachment and sale. He argued that by entering into an agreement, to get the property sold by him reconveyed, Sri Mool Narain did not acquire any interest in the two houses (Section 54 of the Transfer of Property Act) and as such this right could not be described as Immovable property within the meaning of Section 60 of the Code of Civil Procedure. According to him the scheme underlying Order 21 of the Code shows that there is no provision under which such a right could be attached in execution of the decree. Order 21 Rule 43 makes provision for the attachment of movable property other than agricultural produce in possession of the judgment debtor by providing that the property is to be attached by actual seizure. Order 21 Rule 46 provides for attachment of movable property not in possession of the judgment debtor by requiring the person in possession not to give it over to the judgment debtor. In the instant case if it is considered that Sri Mool Narain was possessed of the right to get the property reconveyed this right was not capable of actual seizure and therefore it could not be attached in the manner provided Under Order 21 Rule 42 of the Code. This right could also not be attached in the manner provided for in Order 21 Rule 46 as there is no other person who could be said to be in possession of the property and who can be required not to let the judgment debtor have it. He therefore argued that when the Legislature provided that movable property could be attached and sold it only meant tangible Or corporeal movable properly and not intangible or incorporeal property. After giving careful consideration to this matter, we have come to the conclusion that the argument advanced on behalf of the Appellant is not tenable. Section 60 of the Code of Civil Procedure runs thus: 60(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses, or other buildings, goods, money, bank notes, cheques, bills of exchange, hundis, promissory notes, Government securities, bonds or other securities for money, debts, shares in a corporation and save as hereinafter mentioned, 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 he held in the name of the judgment debtor or by another person in trust for him or on his behalf. Provided that the following particulars shall not be liable to such attachment or sale, namely: (a).........(b).........(C).........(d)......... (e) A mere right to sue for damages. (f) Any right of personal service, (g)......(h)......(i)......(ia).....(j)......... (k).........(l)......... (m) An expectancy of succession by survivorship or other merely contingent or possible right or interest. (n) A right to future maintenance; (o) any allowance declared by any Indian law to be exempt from liability to attachment or sale in execution of a decree; (p)... ... ... ... Explanation 1... ... ... ... Explanation 2... ... ... ... Explanation 3... ... ... ... (2) ... ... ... ... A perusal of this section shows that apart from the specific items mentioned in this section and save as otherwise provided, all saleable properties whether movable or immovable belonging to or over which or over the profits of which a judgment debtor has a disposing power can be attached and sold in execution of the decree. The Legislature clearly intended that all saleable properties belonging to or over which the judgment debtor has a disposing power should become liable to attachment and sale. The words "movable or immovable" used after the words "saleable property", were used to clarify that all property of whatever nature it may be, if it is saleable, can be attached and sold in execution of a decree. These words were not used to limit the type of property which could be sold, to corporeal properties alone. According to Section 3(36) of the General Clauses Act, which applies to the interpretation of the Code of Civil Procedure, the words "movable properties" would mean property of every description except Immovable property. It means that if there is a property of any description and it cannot be said to be Immovable property it will be covered by the words movable property. Use of the words property of any description in this section clearly negatives the suggestion made on behalf of the counsel for the Appellant that in Section 60 the words "movable property" have been used as being confined to corporeal property.;