NARENDRA PRASAD SINHA Vs. MAHARANI JANKI KUER

JUDGEMENT

(1.) Miscellaneous Appeal No. 185 of 1945 and civil Revision No. 588 of 1945 are against the order of the Additional Subordinate Judge of Motihari who by a single order dismissed Narendra Prasad Sinha's application under Section 47, Civil P.C., as well as Nagendra Narain Singh's application under Order 21, Rule 58, Civil P.C. It appears that a sum of Rs. 17888. was in the hands of the Muzaffarpur Municipality standing in the name of Narendra Prasad. This money was deposited with the said Municipality in the name of Narendra Prasad in order to take settlement of the Akhra Ghat within the jurisdiction of the Municipality. It was claimed by Narendra Prasad and Nagendra Narain that each of them had a half share in the said Rs. 17833 although the entire deposit was made in the name of Narendra Prasad. Settlement of Akhra Ghat was, however, not made with Narendra Prasad or with Nagendra Narain. An application was made to the Municipality for refund of the said deposit and a cheque for the same amount was issued to Narendra Prasad on 9 January 1945. Payment, however, was withheld by the Chairman of the Muzaffarpur Municipality on receipt of an attachment order from the Court of the Additional Subordinate Judge on 10 January 1945.

(2.) It appears that the respondent, Maharani Janki Kuer, had obtained a money decree against the appellant Narendra Prasad for a sum of Rs. 15221-5-9 on 19th December 1944. On 8 January 1945, the respondent filed an application for execution of the decree with a prayer for simultaneous attachment of Rs. 17833 with the Muzaffarpur Municipality standing in the name of Narendra Prasad and also prayed that a notice under Order 21, E. 22 may issue. On 9 January 1945, the Municipality had issued a cheque to Narendra Prasad for this sum as stated above and on 10 January 1945 a notice under Order 21, Rule 52 was served upon the Chairman of the Municipality informing him that the respondent had applied for attachment of certain monies in his hand belonging to the appellant, requesting him to hold the said money until further orders of the Court. The Chairman, in obedience to this notice, stopped payment on the cheque already issued.

(3.) Mr. P.R. Das appearing for Narendra Prasad urged that the order on the Municipality made by the Subordinate Judge under Order 21, Rule 52 of the Code was illegal as the Chairman of the Municipality was not a "public officer" having regard to the definition of that expression in Section 2(17), Civil P.C. and that the money in question in the hands of the Municipality was not at the time the property of the judgment-debtor Narendra Prasad. It was at best a debt owed by the Municipality to him and that the only rule which could possibly be applicable was Rule 46 of Order 21. He, however, urged that even this rule would not be applicable as the handing; over of the cheque by the Chairman of the. Municipality to Narendra Prasad, who had given a receipt for it, was a discharge of the debt and accordingly at the, time the Municipality was no longer a debtor and there was no debt capable of attachment. Mr. Jaleshwar Prasad appearing for Nagendra Narain further urged that even if at the time there was a debt owing by the Municipality to Narendra Prasad, the proper mode for attachment was by actual seizure of the cheque under Order 21, Rule 61 as the cheque was a negotiable instrument. Rule 46 was not applicable as the debt was secured by a negotiable instrument, whereas Rule 46 is applicable to a debt not so secured.