Anwar Ahmad, J. - (1.) The sole respondent obtained a decree in Title Suit No. 81 of 1964 in the Court of the Subordinate Judge, Alipore. The decree was put under execution in that Court (Execution Case No. 14 of 1966); but, at the request of the respondent, it was transferred to the Court of the Subordinate Judge, Deoghar, for execution, where it was numbered as Execution Case 22 of 1966.
(2.) The decree was for a sum of Rupees 1,31,880.05, including costs of the first execution, and was sought to be realised by the sale of the right, title and leasehold interest in 390.51 acres of land of the appellants (judgment-debtors) in Mouza Khun bearing Thana No. 593, Taluq Fulochwan, Thaua Sarath, Sub-division Deoghar, in the district of the Santhal Parganas, wherein the appellants had been carrying on business in coal-mining in the Central Chitra Colliery under the name and style of B. N. Mandal and Co. The appellants raised a number of objections to the said execution under Section 47 of the Code of Civil Procedure which gave rise to Miscellaneous Case No. 1 of 1967 of the Court below. Shortly put, their contention was that the decree was null and void and the execution not maintainable and that, as the respondent sought to realise the decree by attachment and sale of the mineral rights owned by the appellants, pre- vious sanction of the Central Government was necessary. The Court below, relying on the Bench decision of this Court in Bhowra Kankanee Collieries Ltd. v. Sunil Kumar Roy, 1968 Pat LJR 486, negatived this contention of the appellants. Following that decision, the Court below held that the Mineral Concession Rules (hereinafter referred to as the Rules) which came in force in 1948 did not apply to the present lease created in 1946. It also relied upon the notification published in the India Gazette (Part II) dated the 13th April, 1968, by which Rule 37 of the Rules was amended and the provision regarding previous approval of the Government was omitted.
(3.) It will be useful to quote the relevant portions of Rules 37 and 48 of the Rules which are in these words:-- "37. The lessee shall not without the previous consent in writing of the State Government, which in case of mining lease in respect of minerals specified after previous approval of the Central Government. (a) assign, sublet, mortgage, or in any other manner transfer the mining lease of any right, title or interest therein.... *** "48. No prospecting licence or mining lease to which the provisions of this Chapter shall apply, or any right, title, or interest in such licence or lease, shall be transferred except to a person holding a certificate of approval from the State Government having jurisdiction over the land in respect of which such concession is granted." The contention of Mr. Balbhadra Prasad Singh, learned counsel for the appellants, is that, although the word "attachment" is not to be found in the rules, attachment being an integral part of the execution sale, the one cannot be separated from the other and, as such, Rule 37 must be deemed to have prohibited the attachment of the property unless the consent of the Government had been obtained. The submission of learned counsel that attachment and sale are inseparable is not correct and is not borne out by the various provisions of the Code of Civil Procedure. There are cases in which there may be sale without any order of attachment vide Order XXI, Rule 11 (2) (j) (ii) of the Code. Order XXI deals with the execution of decrees and orders. Sub-rules (1) and (2) of Rule 11 of Order XXI deal with applications for execution. Sub-clause (ii) of Clause (j) to Sub-rule (2) of Rule 11 makes it clear that it is at the option of the decree-holder to get his decree realised by attachment and sale or only by sale without attachment of a certain property of the judgment-debtor. For a converse case, reference may be made to Order XXXVIII, Rule 5 of the Code which provides for attachment of a property without any reference to its sale. An order of attachment made under the provisions of Order XXXVIII, Rule 5 may not lead to any sale at all when no decree is passed in favour of the plaintiff. The submission of learned counsel is also not acceptable on account of the fact that it is well settled that attachment does not create any interest in the attached property in favour of the decree-holder, vide Soobul Chunder Law v. Russick Lall Mitter, (1888) ILR 15 Cal 202; Raghunath Das v. Sunder Das Khetri, 41 Ind App 251 = (AIR 1914 PC 129); Government of the United State of Travancore and Cochin v. Bank of Cochin Ltd., AIR 1954 Trav-Co. 243; Manickam Chettiar v. Income-tax Officer., Madura, AIR 1938 Mad 360 (FB). Rule 37 (a) of the Rules only prohibits different kinds of transfer of the mining lease, and, as attachment does not amount to creation of any interest in the attached property in favour of the decree-holder, it is not possible to accept the proposition put forward by learned counsel. Reliance was also placed on the Bench decision of this Court in Sm. Kamla Bala Devi v. Ojha Brothers Ltd., ILR 41 Pat 412. In that case, the property of the judgmcnt-debtor had been sold in contravention of Rule 46 of the Rules. The sale was set aside. That case is of no assistance to learned counsel as nothing was decided therein about the attachment of a leasehold property.;