BACHHRAJ DUGAR Vs. LALCHAND TODI AND ORS.

JUDGEMENT

(1.) THIS appeal arises out of an execution matter. The facts leading upto the present appeal are that Lalchand Todi Plaintiff -Respondent No. 1 instituted a suit in the court of the Ex -Officio Subordinate Judge at Tezpur against the Defendants who are arrayed as Respondents Nos. 2, 3 and 4 in the present appeal for recovery of money. The Plaintiff applied for attachment before judgment of certain movable properties belonging to the judgment -debtors. The court ordered attachment of certain movables in possession of Defendant opposite party No. 2 Dhanrai Bhanwarilall. In pursuance of the aforesaid order of attachment the Assistant Nazir seized some bales of cloth valued at about Rs. 10,585/ - from his possession. The Appellant Bachhraj Dugar was asked by the Assistant Nazir to keep the said properties in his custody. As the Defendant opposite parties Nos. 2 and 3 also made the same request to him, the Appellant agreed to keep the properties in his godown at Tezpur, where other goods worth about six lakhs of rupees were also stored.

(2.) A preliminary objection has been taken by the counsel for the Respondent that the present appeal is not maintainable. It is urged that the order of the court does not come under Section 47 read with Section 145, Code of Civil Procedure and hence no appeal lies. The short answer to the preliminary objection is that the court below in its order having formulated two points for consideration - - firstly whether Section 145, Code of Civil Procedure applies in this case and whether the zimmadar can be proceeded against under the section and secondly whether the zimmadar is liable to restore the attached properties or to pay the value thereof - - held that Section 145(c), Code of Civil Procedure clearly applies to the facts of this case. He has thus purported to act under Section 145, Code of Civil Procedure and the order is thus covered by Section 47, Code of Civil Procedure and the appeal would lie. The Appellant has also filed an application under Section 115, Code of Civil Procedure and if a proper case is made out, there is no bar to this Court exercising its powers under Section 115 of the Code of Civil Procedure.

(3.) SECTION 145, Code of Civil Procedure provides as follows: