CHAMPAKLAL RANGILDAS SHAH Vs. SWASTIK BHARAT KALA KENDRA

JUDGEMENT

(1.) This is an application for revision of the order of Mr. H. K. Karmarkar, Judge Small Cause Court, Nagpur, in civil suit No. 1673 of 1959 releasing from attachment two embroidery machines which were attached by the applicant before judgment under O. 38 R. 5 of the Code of Civil Procedure.

(2.) The relevant facts are as follows: The applicant instituted a suit against the opponents for the recovery of Rs. 1,200/- alleged to be due on foot of accounts. The applicant alleges that opponent No. 1 is a partnership firm and opponents 2 to 5 are members of that firm. On 28-2-1959, the applicant made an application under O. 38, R. 5 of the Code for attachment before judgment of two embroidery machines which according to him are the property of the firm. The ground on which the application was made was that these machines, though they belonged to the firm, were removed by opponent No. 4 from the premises of the firm to his own house and that the other property of the firm had been concealed by the partners. On 2-3-1959, the Court passed an order to the effect that the two machines be attached before judgment unless any of the opponents furnished security for the claim in suit. Apparently, no security was furnished and therefore on 4-3-1959 the machines were attached. On 6-3-1959, Manubhai, opponent No. 4, made an application under S. 60 (1) (b) of the Code read with O. 38, R. 6 thereof for releasing the property rom attachment. In that application he also offered to furnish security to the extent of Rs. 1,400/-. An ex parte order was passed on this application by the learned Judge of the Court below to the following effect: "Machines to be returned to applicant. Attachment to continue. Security to be taken before machines are returned." No security was furnished by Manubhai. On 16-3-1959, the matter came up before the Court again. On that date. Manubhai filed his reply to the application of the applicant for attachment before judgment. In that reply he sought releasing of the attachment. He denied that opponents 2-5 are partners of the firm, opponment No. 1. He also specifically denied that he had in any way concealed , disposed of or removed any goods belonging to the firm. As regards the two embroidery machines he contended the they belonged to him exclusively and that after the severance of his connection with the business of the opponent No. 2, who is a brother of the applicant, he removed them to his own house and that he was entitled to do so under law because they belonged to him alone and not to the alleged firm. He further contended that he is an artizan, that those mchines are tools of an artizan and that therefore they are not liable to be attached under S. 60(1)(b) of the Code. No enquiry was held by he learned Judge on any of the points in dispute between the parties but he passed an order on 24-3-1959 releasing the machines from attachment. In his order he has framed the following points for determination:

(3.) Mr. Imdad Ali for the applicant, contends that the learned Judge has not framed all the necessary points for determination because some important matters on which the parties were at issue were not included in them. He also says that it was not open to the learned Judge to decide the application without giving an opportunity to the parties to aduce evidence in support of their respective contentions. I agree with Mr. Imdad Ali. The Court must realise that even interlocutory matters have to be decided after giving an opportunity to the parties to aduce the necessary evidence. It is also necessary for the Court to bear in min all the contentions of the parties before deciding an interlocutory application. Now, here we find that the parties are at issue on the question as to whether there was at all a partnership and whether one manubhai exclusively. These points are relevant because before making an order releasing the property on the ground that they are tools of an artisan the Court has to come to the conclusion that they belong to the person who is asking for their release. A firm is not an artizan, though individual members of a firm may be artizans. The protection given by S. 60 (1)(b) is to individuals and not to firms because the whole idea is that persons who carry on their livelihood as artisans or as agriculturists should not be prevented from eking out their existence. The same cannot however be said about firms. A firm does not individually work as an artisan or as an agriculturist.