Decided on May 07,1965

SHYAM LAL Appellant

Referred Judgements :-


Cited Judgements :-



Oak, J. - (1.)THIS Second Appeal arises out of a proceeding under Section 145, C. P. C. A. firm. Messrs. Sunder Lal Tikam Das of Bombay held against another firm Messrs. Padimchand and Company one decree. That was decree No 47 of 1954. In execution of that decree certain goods were attached. There was another decree against Messrs, Padamchand and Company in favour of another firm Messrs. Pooran Ghana Mani Lal of Anmedabad. That was decree No. 1,482 of 1931. At the instance of Firm Pooran Chand Mani Lal of Ahmedabad, the same property was attacked. Attachment order was issued on 6-10-1935; and the notice of attachment was served on 15-16-1955 on Shyam Lal and Raja Ram, who had been appointed custodians by the Court in execution or decree No. 47 of 1954. In the meanwhile decree No. 47 of 1954 had been satisfied; and the order of attachment in decree No. 47 of 1954 was withdrawn on 12-10-1955. In view of the Supurdars' failure to produce the goods in question in execution of decree No. 1,462 of 1951, the Ahmedabad firm applied for action under Section 145, C. P. C. against the Supurdars The Supurdars objected that they were not thus liable under decree No. 1,462 of 1951. Their objection was overruled by the learned Civil Judge of Agra. He passed in favour of the Ahmedabad firm a decree for Rs. 4554 against the two Supurdars under Section 145, C P C. That decision was upheld in appeal by the learned Additional District Judge of Agra. Shyam lal and Raja Ram, custodians have come to this Court in Second Appeal.
(2.)WHEN the Second Appeal came up for hearing before a learned Single Judge, he noticed that the liability of custodians under such circumstances raises a question of law of some difficulty. He, therefore, referred this case to a larger Bench.
It is to be noted that initially the goods were attached in execution of decree No. 47 of 1954. That decree was satisfied; and the order of attachment was withdrawn on 12-10-1955. It was at this stage that the custodians returned the goods to the judgment-debtor without obtaining any order on the point from the execution Court. The first question for consideration is whether the custodians were justified in returning the goods to the judgment-debtor without obtaining directions from the Court.

In Jageshar Prasad v. Mt. Janki AIR 1934 All 357, the facts were somewhat similar to those in the present case. A motor car was attached in execution of a decree, and was handed over to Jageshar Prasad for safe custody, Mst. Janki's husband obtained another decree. In execution of that decree a warrant of attachment was issued with respect to the same motorcar, In the meanwhile Jageshar Prasad had returned the motor car to the judgment-debtor on the ground that the first decree had been satisfied. It was held that the custodian could not plead want of notice of the second attachment so as to escape his liability. In that case the Subordinate Judge called upon the custodian to hand over the motor car. That direction was upheld by Allahabad High Court in revision. There is no specific mention in that judgment about proceedings under Section 145, C P. C. for recovering damages from the custodian.

(3.)IN Genda Mal v. Sukhdarshan Lal, 1936 All LJ 736: (AIR 1936 All 555), certain property was attached in execution of an ex parte decree. The ex parte decree was set aside on 20-4-32. Genda Mal was the custodian of the property attached. On 4-6-1932 he handed over the property to a third party, who had filed an objection under Order XXI, Rule 58, C. P. C. before the disposal of that objection. It was held that the custodian could not exonerate himself from the liability imposed on him on the ground that he, in good faith, handed over the property to a third person. It was his duty to obtain instructions of the Court before handing over the property Which bad been given under his charge.
On the authority of these two cases, we are prepared to assume that the appellants were wrong in returning the goods in the instant case to the judgment-debtor without obtaining instructions from the execution Court, The question remains whether any action under Section 145 could be taken against the custodians at the instance of the Ahmedabad firm.


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