KRISHNA PRASAD Vs. PRATAP NARAYAN

JUDGEMENT

(1.) The facts of this case so far as they are material are not distinguishable from the case of Tata Iron & Steal Co. Ltd. V/s. Charles Joseph Smith 1930 Pat 108, a decision to which I was a party. The question in this appeal before us is whether attachment was necessary before sale. Shortly, the facts were that a money decree had been obtained, and payment by instalments was allowed by the Court; security was given of a certain property which was charged for the payment of the instalments. The judgment-debtor was in default and the decree-holder therefore set about selling the property which was charged under the security bond.

(2.) Several questions came up for determination by the learned Subordinate Judge in the Court below, some of which were decided in favour of the judgment debtor; others decided in favour of the decree-holder, but the one question which is material was decided against him, that is to say, the learned Subordinate Judge held that attachment was necessary. Now in the case of Tata Iron & Steal Co. Ltd. V/s. Charles Joseph Smith 1930 Pat 108, it was decided in precisely similar circumstances that attachment was not necessary and the relevant part of the judgment in that case on this point is to this effect: The second point is that attachment is necessary preliminary to an execution proceeding. This is undoubtedly so; but we must find out a reason for the rule which requires a decree-holder to attach properties as a preliminary to taking execution proceedings.

(3.) Das, J., further states that the reason was "to prevent an alienation and to make a particular fund available to the decree-holder," and then goes on to point out that the property charged as security for the payment of the decree makes the particular property so charged available for that purpose and therefore attachment was not necessary. One of the decisions referred to was the case of Subramanian Chettiar V/s. Rajarajeshwara Sethupathi 1918 Mad 442, which incidentally decided that this was a question under Section 47, Civil P.C. There have been a number of decisions on questions relating to this matter, one of which was in Aubhoyessury Debee V/s. Gouri Sunker Panday (1895) 22 Cal 859, the other in Shyam Sundar Lal V/s. Bajpai Jainarain, 1903 30 Cal 1060 and in Ambalal Bapubhai V/s. Narayan Tatyaba 1919 Bom 56.