1931 (7) TMI 18 - HC - Indian Laws

Summary

Issues Involved:
1. Inconsistency between Order 21, Rule 43 and Rule 122.
2. Responsibility of the attaching officer.
3. Approval and permission by the Court under Rule 122 and Rule 123.
4. Liability of the supurddar and applicability of Section 145, Civil P.C.
5. Decision in Badri Prasad v. Chokhe Lal and its correctness.
6. Liability of the heirs of the supurddar.

Detailed Analysis:

1. Inconsistency between Order 21, Rule 43 and Rule 122:

Sulaiman, J. acknowledges an inconsistency between Order 21, Rule 43, which requires the attaching officer to keep the property in his own custody or in the custody of a subordinate, and Rule 122, which allows the officer to make the most convenient and economical arrangement subject to the Court's approval. Rule 122, being a newer rule, is deemed to have annulled or altered the older Rule 43 to the extent of inconsistency. The new rule must prevail, and the attaching officer's responsibility continues until the Court approves the arrangement.

2. Responsibility of the Attaching Officer:

Under Rule 43, the attaching officer is responsible for the due custody of the attached property. However, once the Court approves the arrangement made under Rule 122, his responsibility ceases. The officer must make the arrangement first and seek subsequent approval from the Court, although prior approval is not impossible.

3. Approval and Permission by the Court under Rule 122 and Rule 123:

The distinction between "approval" and "permission" is critical. Approval implies that the arrangement holds until disapproved, while permission must be obtained beforehand. The appointment of a custodian (supurddar) and taking security from him falls under Rule 122, while the appointment of a sahana (watchman) falls under Rule 123 and requires prior Court permission. The supurddar, who undertakes to produce the goods when ordered by the Court, is considered a surety.

4. Liability of the Supurddar and Applicability of Section 145, Civil P.C.:

Under Section 145, Civil P.C., the supurddar becomes liable as a surety for the restitution of the attached property and can be proceeded against in execution of the decree. This does not preclude the option of a separate suit, especially if a charge on immovable property is involved.

5. Decision in Badri Prasad v. Chokhe Lal and its Correctness:

The case of Badri Prasad v. Chokhe Lal was based on Rules 43 and 123, holding the attaching officer responsible for failing to obtain prior Court permission. However, Mukerji, J. and Boys, J. argue that Rule 122, which allows for arrangements subject to subsequent Court approval, was applicable. The decision in Badri Prasad was deemed incorrect as it did not consider Rule 122, which exonerates the attaching officer once the Court approves the arrangement.

6. Liability of the Heirs of the Supurddar:

Mukerji, J. and Boys, J. emphasize that the supurddar, by taking charge of the attached property, becomes liable under Section 145, Civil P.C., and this liability extends to his heirs. The case was remanded to the lower Court to investigate the liability of the supurddar's heirs, as the decree-holder did not initially seek relief against them. The amin (attaching officer) was exonerated from liability once the Court approved his actions, and the responsibility for the loss of the attached property shifted to the supurddar and his heirs.

Conclusion:

The judgment clarifies the roles and responsibilities of the attaching officer and the supurddar, emphasizing the need for Court approval under Rule 122. It also corrects the misinterpretation in the Badri Prasad case, asserting that the attaching officer's liability ceases upon Court approval of the arrangement. The liability of the supurddar and his heirs under Section 145, Civil P.C., is affirmed, ensuring that the decree-holder can seek restitution from the responsible party.