SHEONANDANLAL GURUDAYAL SHRIVASTAVA Vs. GOPAL BABAJI NAFDE

JUDGEMENT

(1.) THIS is an appeal by the decree-holder, Sheonandanlal against the decision passed by V.B. Sarwate, First Additional District Judge, Nagpur, in civil Appeal No. 11B of 1941. Sheonandanlal decree-holder had obtained a decree against the respondents Patitpawan and Parasaram, and in execution of that decree had attached certain furniture alleging that it belonged to his judgment-debtors. That furniture and the other property attached being of a very heavy nature the Court ordered that the same should be placed in possession of a supratdar; and Gopal Babaji Nafde (respondent 1) became supratdar on 7th January 1939. Under the terms of the supratnama he agreed to take possession of the property and keep it under his custody and produce it whenever required by the Court, and on failure, to be responsible for the payment of (the decretal amount). On 23rd September 1939 he applied to the Court stating that though he undertook to be a supratdar on 7th January 1939 he allowed the judgment-debtors to remain in possession under his supervision and that he then wanted that he should be actually placed in possession of the property attached. The Court ordered that he should be so placed in possession of the property. On 17th February 1940 the supratdar filed an application claiming to be relieved of his supratdarship, and on 9th March 1940 he was asked to deliver possession of the attached property to the decree-holder. But as the decree-holder failed to take possession of the property on some pretext or another though the property was actually produced in Court the Court ordered on 20th April 1940 that the property should remain in possession of the supratdar and that he would get rent at Rs. 5 p.m. for being in possession of it. The property continued to be in possession of the supratdar till 27th February 1941 when it was held that the property did not really belong to the judgment-debtors but belonged to their mother. Consequently, the supratdar was ordered to deliver the property to the mother of the judgment-debtors, and he actually delivered it to her. Thereafter the supratdar filed two applications in Court. By one application he claimed Rs. 10-4-0, the cost of bringing the property to Court and taking it back from Court. By the other application he claimed rent at Rs. 5 p.m. from 20th April 1940 to 27th February 1941. Both these applications were directed against the decree-holder.

(2.) IT was argued on behalf of the supratdar that he claimed relief against the decree-holder as under Rule 197 of the High Court Rules and Orders (Civil) it was primarily the duty of the deeree-holder to deposit such costs in Court. The trial Court before which these applications were made, however, directed by its order dated 26th February 1941 that Rs. 10-4-0, the costs incurred by the supratdar in bringing the property to Court and taking it back from Court, should be paid to him after recovering it from the judgment-debtors. By another order dated 31st March 1941 the Court ordered that the amount of rent claimed by the supratdar should be payable by the judgment-debtors and that process should issue against them. It may be noted at this stage that the two applications filed by the supratdar were applications on execution forms as against the deeree-holder. As against these two orders, the supratdar filed appeals before the Additional District Judge. The Additional District Judge held that the appeals did lie though it was contended that the appeals did not lie, that the trial Court was wrong in granting the relief against the judgment-debtors, and that it should have held that the deeree-holder was the person against whom the order should have been passed for payment to the supratdar. He set aside the orders of the trial Court and directed it first to determine what amounts on account of rent of room and transport costs were properly due to the supratdar and secondly to order the deeree-holder to pay those amounts to the supratdar, which amounts should be allowed to the deeree-holder as costs in the execution proceedings. It is against this order that the present second appeal has been filed in this Court.

(3.) IT is, however, very strenuously argued that no appeal lay to the lower appellate Court, and that the trial Court's order was not one under Section 47, Civil P.C., as held by the lower appellate Court and could not be appealed against. Ramji v. Ziblaji A.I.R. 1924 Nag. 258 which makes a supratdar a party, was a case in which there were proceedings taken against the supratdar; and the point decided was that the security given by a depositary or custodian for the safe custody of property entrusted to him by the order, of an executing Court can be realized by issue of a summary process in execution against him, It was argued that that was a case which fell under Section 145, Civil P.C., which made a supratdar a party to the case for the purpose of realizing the amount of the surety bond if necessary or for compelling him to perform the duties cast upon him under his supratnama. That case, it was argued, was not applicable to the present case where the supratdar wants to enforce certain rights against the decree-holder. It is true that the case in Ramji v. Ziblaji A.I.R. 1924 Nag. 258 related only to an execution against the custodian and was not one at the instance of the custodian against the judgment-debtor or the decree-holder. It is also true that Section 145 in terms does not apply to the facts of the present case. But if a supratdar becomes a party in execution so far as the enforcement of the terms of the bond against him are concerned it does not stand to reason that he should be deemed not a party to the execution proceedings so far as his rights to have his costs made payable by the proper party are concerned. If he has a liability under the bond that he has given, and if during enforcement of that liability he becomes a party, he should also be deemed to be a party for the purpose of enforcing his rights, if any, against the parties at whose instance or for whose benefit he had intermeddled. All liabilities create corresponding rights. He cannot be deemed to be a party for one purpose and not for the other. Though is. 145, Civil P.C., does not strictly apply to the facts of the present case I think this is a case to which Section 145 read with Section 151 would apply, and the order would be appealable.