G. Mehrotra, J. - (1.) THIS appeal arises out of an execution matter. The facts leading upto the present appeal are that Lalchand Todi Plaintiff -Respondent No. 1 instituted a suit in the court of the Ex -Officio Subordinate Judge at Tezpur against the Defendants who are arrayed as Respondents Nos. 2, 3 and 4 in the present appeal for recovery of money. The Plaintiff applied for attachment before judgment of certain movable properties belonging to the judgment -debtors. The court ordered attachment of certain movables in possession of Defendant opposite party No. 2 Dhanrai Bhanwarilall. In pursuance of the aforesaid order of attachment the Assistant Nazir seized some bales of cloth valued at about Rs. 10,585/ - from his possession. The Appellant Bachhraj Dugar was asked by the Assistant Nazir to keep the said properties in his custody. As the Defendant opposite parties Nos. 2 and 3 also made the same request to him, the Appellant agreed to keep the properties in his godown at Tezpur, where other goods worth about six lakhs of rupees were also stored. On the 7th May 1956, the Appellant signed the bond. The terms of the bond will have to be referred to later. According to the Appellant on the 29th June 1956, a fire broke out in the godown of the appellant and all the goods kept therein including the properties kept under his custody were gutted by fire. On the 12th May 1957 the Appellant filed an application before they Ex -Officio Subordinate Judge stating therein that the properties have been destroyed by fire and asked the court to receive the salvage of the goods burnt from the Appellant. On the 27th November 1959 Anr. application was filed by him stating the fact of the goods being destroyed by fire. The Appellant further prayed that he should be discharged from his liability under the bond as the goods have been destroyed by fire. An application is also made by the judgment -debtor that his security should be accepted and the attached goods should be returned to him. The Ex -Officio Subordinate Judge heard arguments on different points raised by the parties and by his order dated the 12th March 1960 held the Appellant liable to produce the properties or to pay the value thereof. He fixed 6th April 1960, for necessary steps. After this on the 16th March 1960 it appears that he considered the application of the Defendant by which he had undertaken to give security and had asked for the return of the goods. The Ex -Officio Subordinate Judge directed the Appellant to deposit the amount of Rs. 10,588/ - being the value of the properties in court. These two orders have been challenged by the present appeal.
(2.) A preliminary objection has been taken by the counsel for the Respondent that the present appeal is not maintainable. It is urged that the order of the court does not come under Section 47 read with Section 145, Code of Civil Procedure and hence no appeal lies. The short answer to the preliminary objection is that the court below in its order having formulated two points for consideration - - firstly whether Section 145, Code of Civil Procedure applies in this case and whether the zimmadar can be proceeded against under the section and secondly whether the zimmadar is liable to restore the attached properties or to pay the value thereof - - held that Section 145(c), Code of Civil Procedure clearly applies to the facts of this case. He has thus purported to act under Section 145, Code of Civil Procedure and the order is thus covered by Section 47, Code of Civil Procedure and the appeal would lie. The Appellant has also filed an application under Section 115, Code of Civil Procedure and if a proper case is made out, there is no bar to this Court exercising its powers under Section 115 of the Code of Civil Procedure. Mr. Ghose for the Appellant has canvassed three points before us. He has firstly urged that Section 145, Code of Civil Procedure is not attracted in the present case. Even assuming that there was a liability under the contract of the Appellant to produce the goods or to pay the price thereof, the liability could not be enforced except by means of a suit and the court below has no inherent jurisdiction to direct the Appellant to pay the price of the goods lost. Secondly it is urged that even if the court could direct the Appellant to return the goods or to pay the price thereof in these proceedings, the order was without jurisdiction or erroneous inasmuch as the goods were lost by fire. The Appellant who was a bailee could not be held responsible for the loss of the goods if he had taken reasonable care and the destruction of the goods was due to act of God. Lastly it was urged that the court below was not right in holding that the liability under the contract was absolute and that the court had power to direct the Appellant to restore the goods or to pay the price thereof without examining the question as to whether the Appellant had taken reasonable care of the goods in his custody and that the goods were lost not due to any wilful negligence on the part of the Appellant. The Appellant contends that there was no proper bond as prescribed under Order 21 -A framed by the Calcutta High Court and adopted by this Court.
(3.) SECTION 145, Code of Civil Procedure provides as follows: "145. Where any person has become liable as surety: (a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a decree, or (c) for the payment of any money, or for the fulfillment of any condition imposed on any person, under an order of the court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of Section 47. Provided that such notice as the Court in each case thinks sufficient has been given to the surety." Order 21, Rule 43, Code of Civil Procedure lays down that: "Where the property to be attached is movable property, other than agricultural produce, in the possession of the judgment -debtor, the attachment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of the subordinates, and shall be responsible for the due custody thereof: Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once." Under Order 38 Rule 7, Code of Civil Procedure the attachment before judgment is to be effected in the manner provided for attachment of property in execution of a decree. By virtue of this provision Order 21, Rule 43 is attracted to attachment before judgment. Order 21 Rule 43 provides that the attaching officer shall keep the property in his custody or one subordinate to him, and in the event of the property being likely to decay, he can sell it at once. There is no provision for putting it in the custody of a custodian under Order 21, Rule 43. Different High Courts have amended Order 21, Rule 43 and have provided for the property being placed in the custody of a third party. The Calcutta High Court in the year 1933 amended Rule 43 and enacted Order 21 -A providing for the custody of the goods attached. The Assam High Court has adopted the amended rule enacted by the Calcutta High Court and also Order 21 -A.;