SRIYA Vs. BIHARILAL

JUDGEMENT

(1.) The circumstances that give rise to this revision may briefly be stated thus. Biharilal and Shyamlal decree holders having obtained a decree for arrears of rent amounting to Rs. 60/ - against Chanda and Shri Kishan judgment debtors applied for execution of the same under O.21, R. 11 C.P.C. before the S. D. O. Dausa. In column No. 10 of the application intended for pointing out the mode in which the assistance of the court was required the decree holders stated that in a different case 15 Mds. of Bajra belonging to the judgment -debtors was brought under attachment and was given over in the custody of Sriya and the same be sold out for satisfying the decree. The application was presented on 24.12.1953. No copy of the decree was file 1 along with the execution application. The office reported that the application was within one year and thereupon the S. D. O. directed the issue of a warrant for attachment on 12.1.1956. When this warrant reached the Tehsildar Dausa he returned it with the remarks that Sriya denied completely the fact of supurdgi and hence in the absence of the supurdnama it was not possible to execute the warrant. Thereupon the decree -holders were required to produce copy of the supurdnama which they did on 6 -3 1956 and a fresh warrant of attachment was directed to be issued. The letter issued by the S. P. O. office in this connection was without the signatures of the presiding officer and hence it was returned and eventually a valid letter was sent by the S. D. O. on 16.7.1956 requiring the tehsildar to comply till 4.8.1956. On 20.7.1956 the Tehsildar issued an order to the Jamadar to produce Sriya along with Bajra. On 3 -8 1955 Sriya was produced before the Naib -Tehsildar and he stated that there was no Bajra of the judgment - debtors at his house and hence no question of any attachment arose. He also stated that the judgment -debtors had taken away the Bajra. The Tehsildar returned the papers to the S. D. O. with his report dated 3 8 1956 stating therein that Sriya was not willing to pay the amount or to bring the Bajra under attachment and that as he (Sriya) would be present in the S.D.O.s court suitable orders may be passed against him. The S. D. O. after hearing the parties passed the following order on 4 -8 1956. "Sriya states that standing crops were given in supurdgi and that the case in which that action was carried out came to an end and Bajra was returned by him to the judgment -debtors as the judgment -debtors had paid the rents had obtained receipt therefor. No moveable property of the judgment debtors capable of attachment is with Sriya hence the decree -holders should point out other methods of execution within three days." The decree -holders feeling aggrieved by this order went up in appeal , before the Additional Commissioner who came to a different conclusion on the ground that as Sri a had obtained no orders for handing over the Bajra to the judgment -debtors and as his actions were indicative of collusion with them it was clear that the Bajra was still with him and that Sriya was liable for satisfaction of the decree to the extent of 15 Mds. of Bajra, Sriya has come up in revision before us against this order. 3. We have heard the learned counsel for the parties and have examined the record at well. Both the lower courts have omitted to make any reference to the law on the subject and hence we would invite their attention to it The decree -holders in their execution application made it clear that 15 Mds. of Bajra belonging to the judgment -debtors was in the possession of Sriya and that the same was sought to be subjected to execution proceedings. Where agricultural produce is in the custody of the judgment -debtor its attachment has to be carried out in accordance with the provisions contained in O. 21, R. 44 C. P. C. In this case attachment is to be made by affixing a copy of the warrant of attachment on the land on which the crop is growing, where such crop is to be placed under attachment. If the crop has been cut or gathered the warrant is to be affixed on the threshing floor or where the produce is deposited and another copy of the warrant is to be affixed on the outer door or some other conspicuous part of the house in which the judgment -debtor ordinarily resides. But where the property is not in the possession of judgment -debtor attachment is to be made under the provision of O.21 R. 46 C.P.C. The mode of attachment in this case is through a written order prohibiting the person in possession of the property from giving it over to the judgment -debtors. A copy of such order is to be affixed on the court house and another copy is to be given to the person in possession of the property. The wordings of the statute itself are clear on the point and if any authority be needed it will be found in A. T. R. 1929 Lahore 200 and AIR 1921 Sindh 95. As laid down in sec. 174(1) of the Rajasthan Tenancy Act, 1955 a decree for arrears of rent may be executed in any mode of execution permissible under the law and when recourse to such modes hat not been able to satisfy completely the decree it can be executed by ejectment of the tenant. The decree holders were, therefore, well within their right to execute the decree by attachment of moveable property belonging to the judgment -debtor. Sec 208 of the Rajasthan Tenancy Act, 1955 provide* that the provisions of the Code of Civil Procedure shall apply to all suits and proceedings under the Act subject to the omission and modifications contained in lists I and II of the Fourth schedule of the Rajasthan Tenancy Act RR 37, 38, 39 and 40 of O. 21 have been omitted by list I and RR. II and 30 stand modified by list II This clearly shows that the provisions of other Rules including RR 44, 46 and 47 of O.21 shall apply to execution proceedings. Obviously the manner in which the proceedings were carried out by the trial court do not at all conform to the requirements of O. 21 R. 46 C. P. C. The question, therefore, arises as to the manner and extent in which Sriya can be held responsible under the circumstances. This has to be determined with reference to the provision of sec. 64 C. P. C. It is laid down therein that where an attachment has been made any private transfer or delivery of the property attached or of any interest therein shall be void as against all claims enforceable under the attachment. Before this section can be called into question it is essential that there ought to be an attachment before the transfer is made. There must be a perfected attachment before property can be subjected to restrictions imposed by this section. Thus where a transfer is made before the attachment the section cannot apply. In the present case no valid attachment having taken place question of applying sec. 64 can possibly arise. There being no proper attachment in the case there can be no question of any claims being enforceable under the attachment. We may also observe that the supurdnama on which the learned Additional Commissioner has relied is also not very helpful in the case. It can be gathered from it that an appraisement of the standing crops was done in that particular case and as a result of the supurdnama Sirya undertook to produce 15 Mds. of Bajra as and when he may be required in that case. It is an admitted fact that that case came to an end and that Sirya was never required to produced anything in that case nor is likely to be so required now as the case bad come to an end. Thus on a proper interpretation of the supurdnama it would be doubtful if any moveable property belonging to the judgment debtors ever actually reached the bands of Sirya applicant. For these reasons we allow the revision, set aside the decision of the lower appellate court, dated 20 -2 1957 and restore that of the trial court dated 4.8.1956.