BADRI PRASAD Vs. CHOKHEY LAL

JUDGEMENT

(1.) This is a difficult matter to settle. It has arisen out of interlocutory orders passed by a Subordinate Judge without proper attention to the rules dealing with procedure as to attachment prior to judgment. In a suit for a recovery of money the plaintiff applied under Order 38, Rule 5 for attachment prior to judgment. The Court passed an ex parte final order of attachment without having any jurisdiction to do so. Under Clause 3 of that rule the Court is given permission to direct a conditional attachment of the whole or any portion of the defendant's property while proceedings are pending regarding the question as to whether the defendant should furnish security for the claim of the plaintiff or not. After the order of attachment no proceedings, such as are directed in Clause 1, were taken by the Court. A pleader of the Court, Mr. Mohammad Ibrahim, was appointed attaching officer and directed to attach the defendant's stall on the 3 of November 1922, and attached cloth of the value of Rs. 910. I shall not discuss the details of the attachment, or the manner in which it is alleged the cloth was made over to the custody of one Badri Prasad. It appears that Badri Prasad wrote out an undertaking that he would produce this attached property whenever so directed by the Court or by the Commissioner. The Commissioner thereupon made a report to the Court stating that he had made over the property to Badri Prasad, and had completed the performance of the task allotted to him. His report is of importance. No permission as to the action taken by him was desired by the Commissioner from the Court. Subsequently the suit was dismissed, and the defendant applied that the attachment before judgment may be removed. This application was made under Rule 9, Order 38. On this application the Commissioner was directed to make over the property to the defendant, but it appears that the Commissioner was unable to recover it, and he made such a report to the Court. The Court thereupon called upon Badri Prasad to restore the property, and his defence was that he was not really a custodian on behalf of the Court. His defence was not accepted, and a decree for Rs. 910 was passed against him. He came here in revision, and the applicant, Chokhey Lal, was made a party respondent to the application.

(2.) When the application was heard on the 13 of April 1926, this Bench was of opinion that the Commissioner ought to appear before it and show cause why directions should not be given to him to make good the loss suffered by Chokhey Lal. To day it was argued on behalf of the Commissioner by his learned Counsel that this Bench had no jurisdiction to bring the Commissioner on the record as a party. There is no necessity of bringing him on the record. He is already, as Commissioner appointed by the lower Court, an officer of the Court, and as such within the jurisdiction of this Court which appointed him. Udder Order 21, Rule 43 the attaching officer is bound to keep the property in his own custody, and is held to be responsible for the due custody of that property. He is responsible just as much to this Court as to the Court of trial. We are, therefore, of opinion that we have authority to pass any order we think appropriate against him under the circumstances of the present case.

(3.) Under additional rules made by this Court under Order 21 (see Book of Rules framed by this Court under Section 122 of the Civil P. C.), in Rule 123 directions are given as to what is to be done by the attaching officer when movable property-is such as could not be immediately removed from the place where it is attached. In that case under Rule 123 the attaching officer shall, subject to the approval of the Court, make such arrangements as would be most convenient and economical. In the next rule it is stated that one of the arrangements may be to put one or more persons in special charge of such property; but for that purpose the attaching officer must obtain the permission of the Court. In the present case the attaching officer presumably acted under Rule 124 when he placed Badri Prasad in special charge of the property; and to make Badri Prasad liable to the jurisdiction of the Court, it was necessary for the Commissioner to obtain the permission of the Court. No such permission was obtained. As already pointed out in the report which the Commissioner submitted to the Court as to the action he had taken with regard to the commission issued to him, he made no request that permission may be granted to him to place the property in special charge of Badri Prasad.