MAHADEV VASUDEO Vs. JANAKSINGH SAIGAL

JUDGEMENT

(1.) THIS is an appeal from a judgment of Mr. Justice Coyajee by which he dismissed a notice of motion to set aside an insolvency notice dated December 19, 1952. The insolvency notice callea upon the appellant to pay a sum of Rs. 35,000, being the balance of the amount due under a decree obtained by the respondent against the appellant in suit No. 842 of 1952 filed in the High Court of Calcutta. The insolvency notice was sought to be set aside on two grounds. The first ground 'was that the execution of this decree had been stayed, and the other ground was that the appellant did not reside or carry on business within one year from the date of the insolvency notice as required by the Insolvency Act.

(2.) TURNING to the first point, suit No. 842 of 1952 was a suit for dissolution of partnership and accounts and it was filed on March 4, 1952. The decree in this suit was passed on March 31, 1952. Under this decree the appellant became liable to pay Rs. 50,000 by certain instalments. Another suit was filed by one Joharmal Bose against the respondent, the appellant and others, being suit No. 2386 of 1952. The claim in this suit was Rs. 8,000. Joharmal applied for an attachment before judgment on the day on which the suit was filed, via. June 19, 1952, and what he sought to attach was the decree in suit No. 842 of 1952. An order was passed by the High Court of Calcutta on that application on June 19, 1952, and the contention of the appellant is that it is this order which operates as a stay of the decree in suit No. 342 of 1952. It is urged by Mr. Laud on behalf of the appellant that the order passed by the High Court on 19-6-52, operates as an attachment and the effect of the attachment is to prevent the respondent from executing his decree in suit No. 842 of 1952. On the other hand, it is contended by Mr. K. T. Desai on behalf of the respondent that although the High Court might have passed an order on June 19, 1952, no attachment was levied pursuant to that order and a distinction has got to be made in law between an order of attachment and the attachment levied pursuant to that order; and it is further urged that it is only when the order is effectuated by an attachment being levied pursuant to that order that it could be said that the attachment is complete and the consequences of the attachment would follow. For this purpose Mr. Desai relies on a decision of the Privy Council in' -- 'muthiah Chetti v. Palaniappa Chetti', AIR 1928 PC 139 (A ). That was a case where the Privy Council was considering the provisions of Order XXI, Rule 54, and the Privy Council considered the scheme of the Civil Procedure Code with regard to attachments, and: their Lordships point out that the order passed by the High Court is one thing and attachment is another, and the real thing is not the order but the attachment. They also point out that the provisions of the Code of Civil Procedure make it amply clear that the Legislature intended to. prevent a mere order of a Court from effecting attachment, and plainly indicating that the attachment itself is something separate from the mere order and is something which is to be done and effected before attachment can be declared to have been accomplished, and their Lordships considered the provisions with regard to attachment of shares of moveables, shares of salary, and. attachment of partnership property. It is rather significant that their Lordships did. not expressly consider the provisions with regard to attachment of a decree, but they do point out at p. 142 that no property can be declared to be attached unless first the order for attachment has been issued, and, secondly, in execution of that order the other things prescribed by the rules in the Code have been done. Therefore, it is clear that we must look to the Code itself in order to find out what are the things prescribed by the Code which have got to be done in order that the attachment should be effective.

(3.) TURNING to Order XXI, Rule 53, Sub-rule (1) deals, with decrees to be attached which are for money or for sale in enforcement of a mortgage or charge, and Clause (a) deals with decrees to be executed and to be attached being passed by the same Court, and Clause (b) deals with the case where the decree sought to be attached was passed by another Court. In the second class of cases where the decree sought to be attached was passed by another Court, the attachment is by issue to-such other Court of a notice by the Court which passed the decree sought to be executed, requesting such other Court to stay the execution of its decree unless and until the two conditions set out in that clause are satisfied. It is instructive to note that as in the case of attachment of other property as far as Clause (a) is concerned the Code does not make any provision for the levying of the attachment, it does not indicate what has to be done in order that the order of attachment should be effectuated. In the case of decrees falling under Clause (b) the Code-does prescribe what has got to be done, and that is the issue of a notice to the Court which passed the decree sought to be attached. Sub-rule (2) of Rule 53 enables both the attaching creditor and his judgment-debtor to execute the decree attached. Sub-rule (3) makes the attaching creditor the representative of his judgment-debtor for the-purpose of executing the decree. Sub-rule (4) deals with decrees other than those mentioned in Sub-rule (1), and it is again significant to note that in the case of such decrees Sub-rule (4) provides that the attachment shall be made, by a notice by the Court which passed the decree sought to be executed, to the holder of the decree sought to be attached, prohibiting him from transferring or charging the same in any way. Therefore, it is only in the case of decrees which are other than decrees referred to in Sub-rule (1) that the attachment has to be made by a notice being served on the holder of the attached decree. Therefore, Sub-rule (4) makes it perfectly clear that in the case of decrees which fall in Sub-rule (1) attachment has not to be made by a notice being served upon the holder of the attached decree. ' That again makes it clear that as far as Sub-rule (1) is concerned, the attachment can be made without following the procedure laid down in Sub-rule (4 ). Sub-rule (6) provides for the Court giving notice of the order of attachment to the judgment-debtor bound by the decree attached, and it provides that no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof, either through the Court or otherwise, shall be recognised by any Court so long as the attachment remains in force. It may be urged that the expression "on the application of the holder of a decree" refers to the main application made by the holder under Rule 53, Sub-rule (1), but the better view is that the application contemplated by Sub-rule (6) is an independent application which the holder of a decree sought to be executed has to make if he wants the judgment-debtor of the decree sought to be attached to be bound by the attachment. It is clear from the position in which Sub-rule (1) is to be found in Order XXI, Rule 53, that the intention of the Legislature was not that the notice to be issued by Sub-rule (6) was the mode of effecting the attachment under Rule 53, Sub-rule (1 ). If that had been the intention, then one would have found this provision not in Sub-rule (6) but in Sub-rule (1) itself and as part of Sub-rule (1); and we find that a Pull Bench of the Madras High Court in -- 'lakshminarasimham v. Lakshminara-simham', AIR 1927 Mad 728 (B) (FB) has taken the same view. There the learned Judges were considering a case that fell under Clause (b) of Sub-rule (1) of Rule 53, and the view taken was that notice under Orderxxi, Rule 53 (6), was not necessary for the purpose of completing the attachment of the decree. The attachment is effectuated by the service of notice on the Court which passed the decree.