STATE BANK OF INDIA Vs. LUCKY STORES

JUDGEMENT

(1.) THERE was a delay of over three months in moving this application in this Court under section 115 of the Code of Civil Procedure. The Bank in its application for condo nation of the delay has stated that after a conference of the instructing solicitor and the Bank's Officer on the impugned order it was decided that the best course would be to file a suit against the judgment-debtor as also the decree-holder for enforcement of the Bank's right as pledge. Thereafter on or about Match 14,1974, the instructing solicitor received an information that the decree-holder was going to take steps f or execution and sale of the pledged movable properties. They then contacted the learned Advocate Mr. Mukherjee when it was decided to move the application in revision against the aforesaid order. It appears to us that by reason of the delay no prejudice has been caused to any party and in the facts and circumstances as indicated above we feel inclined to condone the delay in making the application.

(2.) THIS Rule is directed against order No. 59, dated the 31st of August, 1973, passed under order 21 Rule 61 of the Civil Procedure Code. It appears that opposite party no. 1 obtained a money decree against opposite party no. 2 and in execution of the decree attached moveable properties belonging to opposite party No. 2, the judgment-debtor. It further appears that the petitioner, the State Bank of India, advanced moneys to the judgment-debtor, opposite party No. 2 against the pledge of the goods attached as continuing security and the pledge was and is subsisting. On the attachment being made the Bank filed an objection under Order 21 Rule 58 of the Code giving rise to Misc. Case No. 47 of 1971. The learned Judge in dealing with this application held that the properties were attached in due process of law. He also held that the properties attached were pledged with the Bank by the judgment-debtor long before the attachment was effected. The learned Judge further held that as the attachment could only be in respect of equity of redemption which is put up for sale, the interest of the Bank would in no way be affected. In this view of the matter, the petition under Order 21, Rule 58 of the Civil Procedure Code was dismissed as it was held being not maintainable in law.

(3.) AFTER hearing Mr. Ghosh in support of the Rule it appears to us that at the relevant time when the attachment was made, the judgment-debtor had. no possession of the pledged properties. In view of the nature of the goods which are moveable ones there can be attachment of movable property in possession of the judgment-debtor under Rule 43, Order 21 of the Code of civil Procedure, by actual seizure to be kept in custody of the attaching officer or of his subordinates. Under Rule 46 (1) Clause (c) in case of other movable property not in possession of the. judgment-debtor, the attachment is to be made by a written order prohibiting the person in possession thereof from giving it over to the judgment-debtor. When a claim is preferred. to or objection is made to attachment, the court under Rule 60 if satisfied that such property when attached was not in possession of the judgment-debtor or of some person in trust for him shall order release of the property from attachment.