MAHARAJ BAHADUR SINGH Vs. MAFIZUDDIN CHOWDHURY

JUDGEMENT

(1.) The petitioner before me obtained a decree for rent against the judgment debtor opposite party. He put in an application by which he wanted the moveables of the judgment-debtor to be attached in the first instance and if the money was not realised by the attachment of the moveables, he wanted to sell the defaulting tenure. While this application was pending certain moneys to which the judgment-debtor was entitled were deposited in Court. On that the decree-holder made an application for attachment of those moneys. The Munsif said that inasmuch as the writ to attach the moveables had been sent over to the Nazir, he could not allow the attachment of the moneys to be effected till that writ was recalled. On the said assurance and on the faith that the decree-holder would be given the attachment of the money, he made an application to the Court for recalling the said writ that had already been issued to the Nazir and it was accordingly recalled. But the learned Munsif then took up the attitude that inasmuch as there was no prayer in the application for execution for the attachment of the money in question, he refused the prayer for attachment of the money. Then he said that the execution case is dismissed for default. Probably he was under the impression that there was no further prayer left in the execution petition after the writ of attachment of the moveables had been recalled. It is very unfortunate that the money which was lying in Court to the credit of the judgment-debtor was withdrawn before this Rule could be communicated to the lower Court.

(2.) I am unable, therefore, to deal in the present Rule with the question as to whether those moneys ought to have been attached or not. This Rule has become infructuous to that extent. But I do not feel that there was any justification for the order by which the application for execution as it was filed has been dismissed. That order must be vacated and the case sent back in order that the application for execution filed by the decreeholder may be proceeded with. If any money to the credit of the judgment-debtor hereafter comes to the Court, the said Court would give reasonable facilities to the decree-holder to add the necessary prayers in this application for execution to give him the rights to attach the moneys. After all, in this case, the Court ought to have considered that rules of procedure are handmaids to justice, and ought not to be used for obstructing justice. It ought to have aided the decree-holder in realising the money due on his decrees and should not have enabled the judgment-debtor to take away the moneys from Court thereby defeating or delaying the execution. As there was no question of limitation, I do not see what prevented the Court from allowing the decree- holder to add a prayer, namely for attachment of the said moneys.

(3.) The Rules are accordingly made absolute in part, but inasmuch as the orders of the learned Munsif have placed the decree-holder in difficulties and the judgment-debtor, although he has taken full advantage of some of those orders, was not responsible for them, I would not make any order for costs in these Rules against the judgment-debtor opposite party.