ARTHUR BUTLER AND CO LTD Vs. GULF OIL INDIA PRIVATE LTD

JUDGEMENT

(1.) In this case the petitioner, Messrs, Arthur Butler and Company Limited, obtained a rule from the High Court, asking the opposite parties to show cause why the order of the 1st Subordinate Judge of Muzaffarpur, dated the 10th September, 1957, directing the petitioner to be proceeded against as a garnishee in the execution case brought by the decree-holder opposite parties, should not be set aside by the High Court in its revisional jurisdiction.

(2.) It appears that opposite party No. 1 had obtained a decree against opposite party No. 2 in Execution Case No. 145 of 1955. In execution of the decree opposite party No. 1 attached nine Rollers which were in the custody of the petitioner for the purpose of repair and deshelling and re-shelling. The decree-holder opposite party No. 1 also got a notice issued and served on the petitioner under Order 21, Rule 46 of the Code of Civil Procedure, prohibiting the petitioner from delivering the Rollers "to any person whomsoever until further orders'". The case of the petitioner is that this notice was not served upon him, and between the 1st March, 1956, the judgment-debtor opposite party No. 2 took delivery of the Rollers in question from the petitioner. On the 10th September, 1957, the learned Subordinate Judge of Muzaffarpur held that the petitioner was a garnishee in respect of the Rollers and applied the provisions of Order 21, Rule 63-A' "on the principle of analogy". On the same date the learned Subordinate Judge directed that the execution case should proceed against the garnishee and issued notice under Order 21, Rule 22, Code of Civil Procedure, against the garnishee. Subsequently on the 4th December, 1957, the decree-holder filed a petition for amending the execution petition by adding the name of the petitioner as judgment-debtor. The amendment was allowed by the court and the name of the petitioner was added as one of the judgment-debtors in the decree.

(3.) In support of this application the learned Government Advocate contended that the orders of the learned Subordinate Judge dated the 10th September, 1957 and the 4th December, 1957, are illegal and without jurisdiction. It was pointed out that Order 21, Rules 63-A and 63-B have no application to the present case because the property attached in the execution case is not a debt but the properties are movable properties in the shape of Rollers. Section 64 of the Code of Civil Procedure reads as follows :