BASDEO Vs. JOHN AND CO

JUDGEMENT

(1.) This is an appeal arising out of execution proceedings. The facts may be briefly stated as follows:

(2.) In a suit filed in the Court of the Civil Judge, Agra by one Loonkaran Sethiya against I. E. John and others for recovery of money and for a declaration of a charge over the movable properties of the defendants who own a group of mills at Agra which are called the Johns Mills, an order for attachment before judgment was made and receivers were also appointed for running the mills. There was an appeal to this Court against that order. This Court modified the order appointing receivers and directed that the receivers shall act for the protection of the interests of Loonkaran Sethiya and shall be in possession of the moneys that may be received from certain sources mentioned in the order. The receivers in this manner came to be in possession of a certain sum of money which they deposited in the Imperial Bank at Agra. While the suit of Loonkaran Sethiya was pending in the Civil Judge's Court at Agra another suit was filed by another creditor of the Johns family in the Court of the Additional Civil Judge, Agra. This was the suit of Basdeo appellant in the present appeal. It was also a suit for recovery of money and a decree was obtained on 29-1-1951, for a sum of Rs. 25,000 and odd. Easdeo appellant then applied for attachment of the money in the hands of the receivers. This attachment was made in two modes. The Additional Civil Judge sent an order of attachment of money direct to the Imperial Bank at Agra. He also sent a request to the Civil Judge, Agra, to make the money available to that Court for payment to Basdeo appellant, decree-holder. The request to the Civil Judge was apparently sent under the provisions of Order 21, Rule 52, Civil P. C. The receivers filed an objection to the attachment in the Court of the Additional Civil Judge. The ]earned Additional Civil Judge thereupon heard the parties and allowed the objection of the receivers and withdrew the order of attachment. Against this order the appellant has come up in appeal to this Court.

(3.) The only point for consideration before us is whether in the circumstances of the case the order of attachment should have been withdrawn. It has been urged by learned counsel for the appellant that no decree had been passed in the suit of Loonkaran Sethiya and that any order of this Court in the appeal arising out of the order of attachment before judgment and the appointment of the receivers made in the suit of Loonkaran Sethiya would not bind him because he was no party to that litigation and that if any money belonging to his judgment-debtors was in the hands of the receivers he was entitled to attach it and realise it in execution of his decree. On the other hand, learned counsel for the respondents has urged that the appellant could not execute his decree against the receivers who were the officers of the Court appointing them, viz., of the Civil Judge of Agra, and that the appellant could only execute his decree if he had obtained leave to do so from the Civil Judge, Agra, and that the order of attachment made by the Additional Civil Judge was without jurisdiction and, indeed, in contempt of the Court of the Civil Judge.