LexCHOUTHI PARSAD GUPTA versus UNION OF IND1A AND ORS.
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CHOUTHI PARSAD GUPTA
Y.
UNION OF IND1A AND ORS.
August 31, 1966
[K. N. WANCHOO, J.C. SHAH AND R. S. BACHAWAT, JJ.)
Code of Civil Procedure (Act V of 1908). s. 145 and O.XXI, r. 46(1)
-Prohibitory order under the rule-If s. 145 is attr'!Cted.
The appellant, who was the decree-holder, applied for the execution .
of the decree.
The Sub-Divisional Officer, Military Engineering Service,
was in possession of some movable property of the judgment-debtor. The
Court ordered attachment under 0. XX!, r. 46(1), Civil Procedure Code
by prohibiting the Sub-divisional Officer from banding over the property to
the judgment-debtor. Thereafter, instead of following the proper proce-
dure which was to sell the property under O.XXI, r. 64 and then pass
an order for its delivery under .O.XXI, r. 79(2), the Court ordered the
Sub-divisional Officer to produce the property, and, when it was not
produced, proceeded under s. 145 of the CoUe treating the Union of
India as the principal judgment-debtor.
HELD : Section 145 of the Code was not applicable to the case. That
sect.ion only applies when a per>On becomes liable as a surety and the
execution Court was wrong in holding that the Sub-divisional Ollicer
became a surety simply because attachment had been made by the prohibi-
tory order under O.XXI, r. 46(1), (209-H, 210 B-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 556 of 1964.
Appeal from the judgment and ordet dated March, 24, 1961
of the Assam and Nagaland High Court in M. A. (F) No. 29
of 1956.
B. Sen and D. N. Mukherjee for the appellant.
S. G. Patwardhan and R. N. Sachthey, for the respondent.
The Judgment of the Court was delivered by
Wanchoo, J.-This is an appeal on a certificate granted
by the Assam High Court and arises in the following circums-
tances. The appellant had obtained a money decree against
Thakur Prosad Joyaswal and others
in
194 7.
As
tile
decree remained unsatisfied it was transferred from Calcutta
to Gauhati for execution. On May 2, 1953, an application was
made for execution in the court at Gauhati by attachment under
O.XXI, r. 46 of the Code of Civil Procedure of certain movable
property of the judgment-debtors which was said to be in the pos-
session of the Sub-Divisional Officer, Military Engineering Service,
Pandu. Consequently an order was
issued under O.XXI .r. 46
(l){c)(iii) prohibiting the Sub-Divisional Officer from parting with
207
208
SUPREME COURT REPORTS
[ 1967) I S.C.R.
the property of the judgment-debtors. It may be mentioned that
the Sub-Divisional Officer is subordinate to the Garrison Engineer,
Shillong. Though certain applications were put in on behalf of the
Sub-Divisional Officer before the court, it was only on February 1,
1954 that the Acting Garrison Engineer, Shillong stated before the
court that the movable property in question (i.e. 41 R.S. joists) had
been sold and delivered as far back as November 22, 1951 to Messrs.
Ghunilal-Kanhaiyalal of
Palasbari. This objection was con-
sidered by the execution court and it held on September 25, 1964
that this belated statement that the property in question had been
sold as far back as November 22, 1951 could not be believed. The
execution court therefore dismissed the objection and ordered exe-
cution to proceed.
Thereafter orders were issued for the production of the joists
but they were not produced. Thereupon the appellant applied
that the Union of India should be considered to be the principal
judgment-debtor and
execution
should
be
levied
against
the Union of India. The Union of India objected to this and on
April 21, 1956 the objection of the Union of India was dismissed
and the execution court held that the Union of India be treated as
the principal judgment-debtor and be made liable to the extent of the
proceeds of the attached joists. Later on the same day, a further
legal argument was raised on behalf of the Union of India to the
effect that as there was no surety bond the Union of India could
not be treated as the principal judgment-debtor. This objection
was heard and finally the court ordered on April 28, 1956 that even
though there was no surety-bond executed on behalf of the Union
-0f India.it was liable as a surety. Thereupon the Union of India
appealed to the High Court against the order of April 28, 1956.
The High Court allowed the appeal and set aside the order
of the execution court holding that no action could be taken agaExcerpt shown. Read the full judgment & AI analysis in Lexace.