CHIMANLAL CHHELDAS PATEL Vs. LILACHAND VENIRAM PANCHAL

JUDGEMENT

(1.) :- Ordinarily we would have concluded our judgment having disposed of the contempt application but this case has helped to bring to our notice a practice or procedure which appears to have developed in the City Civil Court the legality of which in our opinion is open to serious doubt. By the order dated December 3 1966 passed below the application of the commissioner who was appointed by the Court to make inventory of the goods and machinery lying in the factory of the first respondent the commissioner was directed inter alia to take usual undertaking and further directed to seal the factory in the event of such usual under taking being not given by the person present at the time of making the inventory. When this order came to our notice we were unable to appreciate the significance of the expression usual undertaking and we had therefore directed the learned Judge in the City Civil Court who had passed the order to make a report to us focusing his attention on the following points:-

(2.) It appears from the report submitted by the learned Judge that the expression usual undertaking means an undertaking to be given by the person who is found to be in possession of the movable property of which inventory is made to produce the property in the Court on being called upon to do so. The practice as the tenor of the report suggests appears to be that the Commissioner after making the inventory takes the movable property so to say in his possession and then entrusts it again to the person in which possession it was found at the time of making the inventory provided such person agrees to give the requisite undertaking and if such undertaking is not given the premises in which the said property was found are sealed up. In other words according to the practice as reported by the learned Judge the Commissioner who is appointed merely to make an inventory assumes the role of a receiver or an attaching officer when the inventory proceedings conclude and takes possession of the movable property and entrusts it again to the person found on the premises and the said property is thenceforth held by such person as a custodian with a distinct understanding that it would be required to be produced in the Court whenever called upon. As the report states this practice is not followed in the City Civil Court in all cases; however in cases such as the one before us namely where the owner of the property is not traceable and property at the time of making the inventory is found in possession of a stranger who may not be bound by an ex parte order of injunction made in the suit against the owner of the property this practice or procedure appears to have been adopted more or less uniformly. The question is whether such practice is warranted by law and whether it is within the competence of the Court to make an order like the one in question based on such practice.

(3.) In this connection it requires to be noted that under the rule of law the Courts are as much bound by law as any other organ or agency of the State. No order affecting the rights of any person including a party litigant can be made by the Court unless it is authorised by the Civil Procedure Code or by any other enactment applicable to the facts and circumstances of the case. An order of such a nature made by a Court cannot be justified on the basis of a practice prevalent in the Court unless the practice itself is embedded in law. The question posed above will have to be answered in the light of this position