RAMPALLI RAMACHANDRUDU Vs. SAIT BAKRAJ GULABCHAND FIRM

JUDGEMENT

(1.) These appeals arise out of the orders passed by the District Judge of East Godavari extending the time for a precept issued to the Court of the District Judge of West Godavari to keep in attachment properties belonging to the appellant who is a judgment-debtor in the suit put of which the application for precept and its extension was made. Mr. P. V. Vallabhacharyulu for the respondent raises a preliminary objection that an order directing a precept is not appealable, as it is not one relating to execution, discharge or satisfaction of the decree. For this argument he relies upon the observations of Sen J. in -- 'Rai Kissenji v. Sri Kissen', ILR (1939) 2 Cal 370. The learned Judge observes as follows:

(2.) What happened there was when a precept was directed to be issued to the Sheriff of Calcutta by the Civil Court of Benares and the properties in Calcutta were kept in attachment, the Sheriff claimed poundage for having the attachment made and the question was whether he was entitled to poundage at all. The learned Judge in considering that question found that a precept under Section 46 is not a step in the execution proceedings but is merely a step taken to facilitate execution. Even if a precept has been ordered, still the decreeholder has to apply to the court which passed the decree under Section 39, C. P. C. for transmitting the decree and thereafter an application under Order 21, Rule 11, C. P. C. has to be filed to the court to which the precept has been directed. We agree with the learned Judge that an order of precept under Section 46 is one which tends to facilitate the execution of the decree and not a step in execution proceedings. The same view has been taken by the Calcutta High Court in an earlier case in -- 'Kasiwar De v. Aswini Kumar', 90 Ind Cas 527 (Cal) where Greaves and Cuming JJ. held that an application for attachment Rampalli Ramachandrudu vs. Sait Bakraj Gulabchand Firm and Ors. (14.02.1952 - M... Page 2 of 3 under Section 46, C. P. C. cannot be regarded as an application for execution. The learned Judges referred to earlier decisions in -- 'Pallonji Shapurji v. Edward Vaughan Jordan', 12 Bom 400 and other cases. We agree with the principles set forth in the Calcutta cases referred to above.

(3.) We are, therefore, of opinion that the appeals are not maintainable and they are dismissed with costs, one set.