GOVINDA PRASAD AGARWALA Vs. ABHIRAM BALA AND ORS.

JUDGEMENT

(1.) THIS appeal is directed against the order of the Subordinate Judge, Mayurbhanj passed on an execution application by which the movable properties belonging to the Appellant were ordered to be attached for realisation of the monies due under the decree. The Appellant is not a party to the suit. He is a surety. The first Respondent filed a suit against the second Respondent Madhusudan Parida for realization of about Rs. 9000/ - and during the pendency of the suit applied for attachment before judgment of the movable properties of the Defendant. In that proceeding the Appellant offered himself as a surety for the due performance of the decree to be passed against the Defendant. A decree was passed on 21 -11 -1952 for Rs. 9750 -10 -9 with costs of about Rs. 1375.11.9 against the second Respondent who was Defendant in the suit. On 9 -2 -1953, the first Respondent -decree -holder filed an application for execution to realise the amount due under the decree. To this execution application, both the original Defendant -judgment -debtor No. 1 and the Appellant -surety were made parties. The prayer in the execution application Was to the effect that the amount would be realized from judgment -debtor No. 1 -the Defendant, failing that from judgment -debtor No. 2, the Appellant -surety and failing realisation of the amount by attachment of movable properties there is also a prayer in the execution application for attachment of immovable properties and sale of the same to realise the amount due under the decree. On this execution application, notices were issued to both the original Defendant -judgment -debtor No. 1 and the surety -judgment -debtor No. 2. The notice simply asked the Appellant to show cause why execution should not be proceeded against him. It is in similar terms as that issued against judgment -debtor No. 1. Judgment -debtor No. 1 filed an application, on receipt of the notice on 30 -3 -1958, for being allowed to pay the amount due from him in instalments. This application was objected to by the decree -holder on 18 -4. 1953 and after about 1 t years this application Was disposed of on 9 -11 -1954 by rejecting the same. After the application for payment of the money by instalments filed by the judgment -debtor No. 1 was disposed of, the decree -holder in the same execution application applied for proceeding against the surety for realization of the amount without asking for attachment of either the movable properties of judgment -debtor No. 1 or for sale of his immovable properties. On 6 -1 -1955, that is, the next day attachment of movable properties of the Appellant surety was ordered and a warrant for attachment of the same was issued. On 7 -1 -1955, the surety appeared and objected to the issue of the warrant and prayed that it should be recalled. On the same day, the learned Subordinate Judge recalled the warrant stating in his order that it was issued by mistake - against the surety and that the warrant should be issued against the Defendant -judgment -debtor No. 1. That warrant for attachment of movable properties of the Defendant -judgment -debtor No. 1 was returned with the endorsement that sufficient movable properties of the judgment -debtor were not .found. I fail to appreciate this endorsement and I am surprised how the court accepted the same. The process server is directed by the court to attach the movable properties of the judgment -debtor. It is his duty to attach as many properties as are found in the possession of the judgment -debtor. The word 'sufficient' indicates that the process server arrogated to himself the power to value the properties and It might be that he simply made a return though he found some properties. The learned Subordinate Judge ought to have asked for an explanation from this process -server as to the return made by him with regard to the attachment of the Defendant -judgment -debtor No. 1. On this warrant being returned with the endorsement as stated above the executing court ordered attachment of the movable properties of the surety. It is against this order that the Appellant has come up in appeal.

(2.) MR . Sinha, the learned Counsel appearing for the Appellant contends that the order of the lower court directing attachment of his movable properties is ultravires and is without jurisdiction. He contends that unless notice as contemplated under Section 145 of the Code of Civil Procedure is issued in Form No. 13 of Appendix H to the surety asking him to show cause why the decree should not be executed against him, the court cannot get jurisdiction to direct attachment of his properties. Section 145 is to this effect,

(3.) I am, therefore, of opinion that the order of the learned Subordinate Judge is not correct. I would therefore allow the appeal and set aside the order of the lower court. The Appellant will have the costs of this appeal as well as costs of the proceedings before the lower court. The amount deposited by the Appellant under the orders of this Court shall be returned to him.