SHAKIR HUSAIN Vs. CHANDOO LAL

JUDGEMENT

(1.) I concur in the conclusion, and would only add a few words because the question is one of general importance. No doubt there is some inconsistency between Order 21, Rule 43 and Rule 122 added by the High Court. The former requires that the attaching officer shall keep the property in his own custody or in the custody of one of his subordinates. The latter requires that he shall, subject to approval by the Court, make such arrangement as may be most convenient and economic. If the Court approves of it, he can certainly put the property in the custody of some one else other than a subordinate officer.

(2.) Under Section 122, Civil P. C, the High Court has power to annul, alter or add to any of the rules in the first schedule. If a new rule that has been added is to some extent in conflict with the previous existing rule, I think the new rule must by implication be deemed to have annulled or altered that rule. The new rule, if not consistent with the old rule must prevail. Bui so far as the question of the responsibility of the attaching officer is concerned, I do not think that there is necessarily any inconsistency. Under Rule 43 he is responsible for the due custody thereof. It is his duty to make the most convenient and economical arrangement, but his legal responsibility will continue till the Court approves of the arrangement. When the Court has approved of it, his responsibility comes to an end; but pending approval it subsists.

(3.) Of course the expression "subject to approval by the Court" implies that the arrangements which are considered by him to be most convenient and economical must be made by him first and approved by the Court subsequently. It is not necessary for him to submit his proposal beforehand and get an approval though such a course is not impossible. The appointment of a custodian or supurddar and the placing of the attached property in his custody and the taking of a security from him are arrangements within the scope of Rule 122. But the appointment of a sahana (guard or watchman) putting him in special charge of a property is done under Rule 123 and must be with the permission of the Court. Ordinarily the difference between the approval and permission is that in the first the act holds good until disapproved, while in the other case it does not become effective until permission is obtained. But permission subsequently obtained may all the same validate the previous act. I also think that although a sahana would not be a surety, a supurddar, who has given an undertaking to produce the goods when ordered by the Court, is a surety although the undertaking is not given to the Court directly but through the attaching officer.