MEHROTRA, J.: This appeal arises out of an execution matter. The facts leading upto the present appeal are that Lalchand Todi Plaintiff-respondent No. 1 institut­ed a suit in the court of the Ex-Officio Subordinate Judge at Tezpur against the defendants who are arrayed as respondents Nos. 2, 3 and 4 in the pre­sent appeal, for recovery of money. The plaintiff applied for attachment before judgment of certain movable properties belonging to the judgment-debtors. The court ordered attachment of certain movables in possession of defendant opposite party No. 2 Dhanraj Bhanwarilall. In pursuance of the aforesaid order of attachment the Assistant Nazir seized some bales of cloth valued at about Rs. 10.585/- from his possession. The appellant Bachhraj Dugar was asked by the Assistant Nazir to keep the said properties in his custody. As the defendant opposite parties Nos. 2 and 3 also made the same request to him, the appellant agreed to keep the properties in his godown at Tezpur, where other goods worth about six lakhs of rupees were also stored. On the 7th May 1956, the appellant signed the bond. The terms of the bond will have to be referred to later. According to the appellant on the 29th June 1956, a fire broke out in the godown of tile appellant and all the goods kept therein including tile properties kept under his custody were gutted by fire. On the 12th May 1957 tile appellant filed an application before the Ex-Officio Subordinate Judge stating therein that the properties have been destroyed by fire and asked the court to receive the salvage of the goods burnt from the appellant. On the 27th Novem­ber 1959 another application was filed by him stating the fact of the goods being destroyed by fire. The appellant further prayed that he should be discharged from his liability under the bond as the goods have been destroyed by fire. An application is also made by the judgment-debtor that his security should be accepted and the attached goods should be returned to him. The Ex-Officio Subordinate Judge heard arguments on different points raised by the parties and by his order dated the 12th March 1960 held the appel­lant liable to produce the properties or to pay the value thereof. He fixed 6th April 1960, for neces­sary steps. The Ex-Officio Subordinate Judge heard arguments on different points raised by the parties and by his order dated the 12th March 1960 held the appel­lant liable to produce the properties or to pay the value thereof. He fixed 6th April 1960, for neces­sary steps. After this on the 16th March 1960 it appears that he considered the application of the defendant by which he had undertaken to give security and had asked for the return of the goods. The Ex-Officio Subordinate Judge directed the appellant to deposit the amount of Rs. 10,588/-being the value of the properties in court. These two orders have been challenged by the present appeal. (2) A preliminary objection has been taken by the counsel for the respondent that the present appeal is not maintainable. It is urged that the order of the court does not come under Sec. 47 read with section 145, Civil Procedure Code and hence no appeal lies. The short answer to the preliminary objection is that the court below? in its order having formulated two points consideration-firstly whether S. 145, Civil Procedure Code applies in this case and whether the zimmadar can be proceeded against under the section and secondly whether the zirnmadar is liable to restore the attached properties or to pay the value thereof-held that section 145(c), Civil Procedure Code clearly applies to the facts of this case. He has thus purported to act under section 145, Civil Procedure Code and the order is thus covered by Sec. 47, Civil Procedure Code and the appeal would lie. The appellant has also filed an application under Sec. 115, Civil Procedure Code and if a pro­per case is made out, there is no bar to this court exercising its powers under Sec. 115 of the Code of Civil Procedure. (3) Mr. Chose for the appellant has canvassed three points before us. The appellant has also filed an application under Sec. 115, Civil Procedure Code and if a pro­per case is made out, there is no bar to this court exercising its powers under Sec. 115 of the Code of Civil Procedure. (3) Mr. Chose for the appellant has canvassed three points before us. He has firstly urged that section 145, Civil Procedure Code is not attracted in the present case Even assuming that there was a liability under the contract of the appellant to produce the goods or to pay the price thereof, the liability could not be enforced except by means of a suit and the court below has no inherent jurisdic­tion to direct the appellant to pay the price of the goods lost Secondly it is urged that even if the court could direct the appellant to return the goods or to pay the price thereof in these proceedings, the order was without jurisdiction or erroneous inasmuch as the goods were lost by fire. The appel­lant who was a bailee could not be held responsible for the loss of the goods if he had taken reason­able care and the destruction of the goods was due to act of God. Lastly it was urged that the court below was not right in holding that the liability under the contract was absolute and that the court had power to direct the appellant to restore the goods or to pay the price thereof without examining the ques­tion as to whether the appellant had taken reason­able care of the goods in his custody and that the goods were lost not due to any wilful negligence on the part of the appellant. The appellant con­tends that there was no proper bond as prescribed under Order 21-A framed by the Calcutta High Court and adopted by this court. (4) Section 145, Civil Procedure Code provides as follows: "145. The appellant con­tends that there was no proper bond as prescribed under Order 21-A framed by the Calcutta High Court and adopted by this court. (4) Section 145, Civil Procedure Code provides as follows: "145. Where any person has become liable as surety : (a) for the performance of any decree or any part thereof, or (b) for the restitution of any property taken in execution of a decree, or (c) for the payment of any money, or for the fulfilment of any condition imposed on any person, under an order of the court in any suit or in any proceeding consequent thereon, the decree or order may be executed against him, to the extent to which he has rendered himself personally liable, in the manner herein provided for the execution of decrees, and such person shall, for the purposes of appeal, be deemed a party within the meaning of section 47. Provided that such notice as the Court In each case thinks sufficient has been given to the surety." Order 21. Rule 43, Civil Procedure Code lays down that: "Where the property to be attached is mov­able property, other than agricultural produce, in the possession of the judgment-debtor, the attach­ment shall be made by actual seizure, and the attaching officer shall keep the property in his own custody or in the custody of one of the subordina­tes, and shall be responsible for the due custody thereof; Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, 'the attaching officer may sell it at once." Under Order 38 Rule 7, Civil Procedure Code the attachment before judgment is to be effected in the manner provided for attachment of property in .exe­cution of a decree. By virtue of this provision Order 21, Rule 43 is attracted to attachment be­fore judgment. Order 21 Rule 43 provides that the attaching officer shall keep the property in his custody or one subordinate to him, and in the event of the property being likely to decay, he can sell it at once. There is no provision for putting it in the custody of a custodian under Order 21, Rule 43. Different High Courts have amended Order 21, Rule 43 and, have provided for the property being placed in the custody of a third party. There is no provision for putting it in the custody of a custodian under Order 21, Rule 43. Different High Courts have amended Order 21, Rule 43 and, have provided for the property being placed in the custody of a third party. The Calcutta High Court in the year 1933 amended Rule 43 and enacted Order 21-A providing for the custody of the goods attached. The Assam High Court has adopted the amended rule enacted by the Calcutta High Court and also Order 21-A. (5) The contention of the appellant is that the bond executed by the appellant does not come within the purview of any of the sub-sections of section 145. The liability taken by the appellant Under the bond is a primary liability and he can­not be regarded as surety. Besides this there is no personal liability of the appellant under the bond. The appellant under the bond is liable to return the property and in the event of his failure to do so, to pay the price of the goods which can be realised as a land revenue. There is no under­taking to return the property taken in execution of a decree, nor for the payment of any money or for the fulfilment of any condition imposed on any person under an order of the court. (6) It will be necessary to examine some of the cases cited at the bar in support of the res­pective contentions raised by the parties. In the Full Bench decision of Shakir Husain v. Chandoo Lai, AIR 1931 All 567 (FB), the decree-holder in execution of his decree attached certain properties belonging to the judgment debtor and the Court Amin attached by seizure ornaments worth over a thousand rupees at the instance of the decree-holder. The ornaments were placed under the custody of one Birijnandan Prasad who executed a bond on the same day as a custodian and agreed that he would hand over the goods whenever the court wanted the same, or in default, he would pay the estimated price thereof. The Amin's report approving the suggestion of the decree-holder was submitted to the court and the Subordinate Judge approved of the same. The Amin's report approving the suggestion of the decree-holder was submitted to the court and the Subordinate Judge approved of the same. Later the decree-holder made an application to the executing court to the effect that the appellate court had dismissed the appeal, that the goods attached were With the judgment-debtor, that the sapurddar or custodian of the attached goods had died and that the goods should be recovered from the judgment-debtor . A notice was issued to the judgment-debtor to produce the goods and the decree holder was asked to dis­close the names of the heirs of the deceased custo­dian. The court ordered the Amin to appear and to explain his position as the heirs of the deceased custodian were not traceable and the judgment debtor contended that the ornaments valued at more than the decretal amount had already been attached. The Subordinate Judge held that the Amin was responsible for the loss and gave him a month's time within which to arrange for the recovery of the goods. Against this a petition in revision was filed to the High Court. The High Court held that the Amin' having obtained the permission of the court before entrusting the goods to the sapurddar was not liable. The next question considered by the Full Bench was as to who was liable for the production of the goods attached. It was held by Sulaiman, Acting C. J., that the Supurddar by his undertaking became liable as a surety for the restitution of the property attached in execution of the decree, and can certainly be proceeded with under section 145, Civil Procedure Code. This however does not imply that remedy by s. separate suit also does not lie. Mukherji, J. held that section 145(.c), Civil Procedure Code applied to such a case and when a man comes forward of his own free will and accord to take charge of property attached, and undertakes to make a restitution of the same, he is the person liable as if the decide had been made against him. Boys, J. also held the same view. (7) In a later case reported in Mathura Dag v. Hari Shanker. Boys, J. also held the same view. (7) In a later case reported in Mathura Dag v. Hari Shanker. AIR 1949 AH 306, a Division Bench of the same court held that the judgment-debtor could enforce the liability of the custodian's bond in execution proceedings when the custodian has undertaken to produce the property attached and kept under his custody. The Bench was of opinion that sub-section (b) of section 145, Civil Procedure Code was attracted. The supurddar to whom the property taken in execution of the decree had been entrusted, became liable for restitution of the property and the decree should be executed against him, as if the decree had been made against him to the extent to which he had rendered himself personally liable. (8) In the case of 'Sankunni Variar v. Vasudevan Nambudripad' A.I.R. 1926 Mad 1005 certain machinery and other articles belonging to the judgment-debtor s were attached and proclaimed for sale. The case was adjourned and the goods were kept in the custody of certain persons on their undertaking to produce the property when called for. Ultimately the sureties failed to produce the property and consequently the sale could not take place. Thereafter the decree-holder put in an application to enforce the liability of the sureties by warrant of arrest. The Subordinate Judge found that the sureties had committed default and ordered that if they do not produce the attached articles or their value as per the bond a warrant of arrest will issue. On appeal by the sureties it was held that the sureties had no excuse for the non-production and must be deemed to have committed default and that the bond was liable to be forfeited. As to the power of the court it was held that where the surety undertakes to produce certain property of the judgment-debtor attached in execution of a decree, or in default to be liable for its value the security bond can be enforced by way of execution apart from the provisions of section 145, Civil Procedure Code. (9) In the case of 'Kami Reddi v. K. Gurumur-thi. AIR 1933 Mad 219 it was held that the pro­visions of section 145, Civil Procedure Code apply to security bonds executed under O. 21, R. 43, Civil Procedure Code. (9) In the case of 'Kami Reddi v. K. Gurumur-thi. AIR 1933 Mad 219 it was held that the pro­visions of section 145, Civil Procedure Code apply to security bonds executed under O. 21, R. 43, Civil Procedure Code. (10) In the case of 'Pulavarti Satyam v. Kuchi-hhotla Satyanarayana, AIR 1936 Mad 953 , it was held that a bond carrying a personal liability by the surety and given under O. 32 R. 6, being for the protection of the minor's interest against his guardian is not a bond which is enforceable by execution in the manner provided by Sec. 145, Civil Procedure Code. (11) In the case of 'Raj Raghubar Singh v, Jai Indra Bahadur Singh', AIR 1919 PC 55 it was held that where the surety charges property by way of security for restitution of the mesne profits he does not personally bind himself and sec­tion 145, Civil Procedure Code is not attracted. Their Lordships of the Privy Council, however, indicated the procedure for enforcement of such a bond in the following terms: "It remains, therefore, that there is an unques­tioned liability, and there must be some mode of enforcing it and that the only mode of enforcing it must be by the court making an order in the suit upon an application to which the sureties are parties, that the property charged be sold unless before a, day named the sureties find the money." X X X X X It appears to their Lordships that the proper way of dealing with the present case is to consider that there are three steps: 1. The assessment of the mesne profits to which the sureties need not be parties. 2. The construction of the instrument deter­mining that the property charged is liable as security in the events which have happened. 3. The order that the property be sold unless the sureties pay." (12) In the later case of Rohani Ramandhwaj v. Har Prasad Singh, AIR 1943 PC 189 this view was again reiterated. It was held that section 145, Civil Procedure Code was not attracted but the court's power could be invoked under section 151, Civil Procedure Code. 3. The order that the property be sold unless the sureties pay." (12) In the later case of Rohani Ramandhwaj v. Har Prasad Singh, AIR 1943 PC 189 this view was again reiterated. It was held that section 145, Civil Procedure Code was not attracted but the court's power could be invoked under section 151, Civil Procedure Code. The following observation at page 191 is apposite: "Upon examination of the matter it appears to their Lordships that the courts in India were right in holding that the case is not within S. 145 if only because the section applies only to the personal liability of the surety. But the appel­lant's claim is nevertheless one which cannot be made by a suit but can only be made by appli­cation to the trial court under section 144 of the Code, and under its inherent powers to enforce the security." (1.3) In the case of 'Gurmukh Rai Ghanasyam-das, firm v. E. F. Lawson, AIR 1939 Cal 316 it was held that when the officer who attaches the movable goods uses his own discretion under Order 21-A, Rule 3 and leaves goods to the custo­dian, the obligation which is imposed on the custo­dian is accessory and not primary. It is the obliga­tion of the attaching officer which is undertaken by the custodian to be discharged. But if the court intervenes and directs the attaching officer to deliver goods to the custodian on his furnishing bond, the custodian's liability is a primary liability and is not accessory and thus he is not a surety within the 'meaning of section 145, Civil Procedure Code. The principles formulated by their Lord­ships of the Judicial Committee in the case referred to by me earlier were held to apply to the facts of that case and the bond could be enforced by exercise of inherent powers by the court. (14) An examination of these cases shows that where the surety undertakes a personal liability and his liability is not a primary liability but is; accessory, the liability can be enforced in execution proceedings under section 145, Civil P. C. But in cases where the liability undertaken by the custodian is a primary liability and thus he cannot be regarded as surety or that he does not take any personal liability, section 145, Civil P. C. is not attracted. But even in those cases the liability under the bond can be enforced by means of an application in the suit itself. The court in these circumstances exercises its inherent jurisdiction. The obligation under such a bond cannot be enforced by a suit. In the present case however, there is neither limy execution by the decree-holder nor is there any personal liability undertaken under the bond. The question of applying Sec. 145, Civil P. C. therefore, in my opinion, does not arise and on the facts of the present case Sec. 145 is not attracted. It is also not a case of enforcing a liability under the bond. Even if it be accepted that by means of the present petition filed by the judgment debtor for the release of the property on his furnishing security the court was enforcing the bond, it is open to the surety to show to the court that the contract stands discharged on account of the destruction of (he goods by the act of Cod for which the custodian cannot be held responsible. In the present case the court below has not examined the position at all, as to whether on account of certain subsequent events the contract has or has not been discharged. The true position, however, is that after the attachment the property remains in the custody™ 01 the court. The officer of the court has to seize the goods and keep the goods in his possession. The possession of the officer will be the possession of the court. If the officer entrusts the goods to a third party under a bond the third party is only a pledgee on behalf of the officer and the posses­sion of the pledgee continues to be the possession of the court. (15) In Teeka v. The State of Uttar Pradesh, AIR 1961 SC 803 dealing with the question as to whether the removal by judgment-debtor by unlawful means of the property kept under the custody of the decree-holder after attachment con­stituted an offence under Sees. 424 and 441, Indian Penal Code, it was observed by their Lordships that: "Attachment by actual seizure involves a change of possession from the judgment-debtor to the court. 424 and 441, Indian Penal Code, it was observed by their Lordships that: "Attachment by actual seizure involves a change of possession from the judgment-debtor to the court. Whether the attaching amin keeps the movable property attached in his custody or en­trusts them to a sapurdar, the possession of the amin or the sapurdar is in law the possession of the court and, so long as the attachment is not raised, the possession of the Court continues to subsist. As in case the property is kept in the custody of the decree-holder, the decree-holder's custody is not in his capacity as decree-holder but only as the bailee of the sapurdar." ,The sapurdar or the custodian in the present case therefore, is a bailee and his liability will have to be regulated by the provisions of the Contract 'Act. (16) Section 152 of the Contract Act provides that the bailee, in the absence of any special con­tract, is not responsible for the loss, destruction or deterioration of the thing bailed, if he has taken the amount of care of it described in sec­tion 151. Before therefore, the liability of the custodian could be ascertained, it was necessary for the court to examine it .the custodian had taken proper care which he had to take under the pro­visions of section 151 of the Contract Act. It can­not be said that the bond executed by the custodian is a special contract to the contrary envisaged under Sec. 152 of the Contract Act. Under the bond the custodian undertook to return the goods whenever demanded by the officer, failing which to pay the price of the goods. This however in our opinion is not a special contract under which the custodian undertook to return the goods or to pay its price even though the goods were destroyed) and he may have taken all the reasonable care required of him under Sec. 151, o£ the Contract Act. (17) Reliance was placed on the case of 'Kusk Kanta v. Chandra Kanta, AIR 1924 Cal 1056. That was a case where an elephant was taken on hire-purchase terms. Under the contract the elephant had to be returned by a certain date. The elepnant was not returned on that date and it was continued to be utilised for lifting loads. (17) Reliance was placed on the case of 'Kusk Kanta v. Chandra Kanta, AIR 1924 Cal 1056. That was a case where an elephant was taken on hire-purchase terms. Under the contract the elephant had to be returned by a certain date. The elepnant was not returned on that date and it was continued to be utilised for lifting loads. After a few days of the date when the elephant had to be returned, the elephant died and the owner brought a suit for recovery of the price against the bailee and for the hire for the subsequent period. The suit was decreed. That was a case where it was held that under section 160 of the Contract Act it was the duty of the bailee to return or deliver accord­ing to the bailor's direction, the goods bailed, without demand, as soon as the time for which they are bailed has expired, or the purpose for which they were bailed has been accomplished and under section 161 of the Contract Act it is laid down that: "If, by the default of the bailee, the goods are not returned delivered or tendiered at the proper time, he is responsible to the bailor for any loss, destruction or deterioration of the goods from that time." In the present case 'there was nothing in the contract to show that the goods had to be returned according to the bailor's direction without any demand as soon as the time for which they were bailed had expired. There was no time fixed in the present case for the return of the goods and thus Sec. 161, Contract Act is not attracted in the present case. The following observation at page 1057 makes it clear that their Lordships were not considering the question which is before us : "It is plain that in' the case before us, the bailee was in default. In the court below, the reason assigned for non-delivery was that the driver was taken ill on the 15th May, 1920. The Sub­ordinate Judge also mentions that as there was a festival at the time, it was not easy to secure the services of a driver. There is no evidence on the record to show that there was in fact a festi­val or that by reason of the festival performance of the contract became impossible. The Sub­ordinate Judge also mentions that as there was a festival at the time, it was not easy to secure the services of a driver. There is no evidence on the record to show that there was in fact a festi­val or that by reason of the festival performance of the contract became impossible. We need not consequently examine how far impossibility which arises subsequently to the formation of a contract excuses performance * * *. In any event this is not a case where the court will imply a term whereby the contract was intended to be discharg­ed through impossibility of perlormance." At page J.05S it was further observed as follows: "We may add that the rule adopted in modern decisions is that proof of loss or injury establishes a sufficient prima facie case against the bailee to put him upon his defence; where chattels are delivered to a bailee in good condition and are lost or are not returned or are returned in a damaged state, the law presumes negligence to be the cause, and casts upon the bailee the burden to show that the loss is due to causes consistent with due care on his part." That was a question where the contract had come to an end arid the defendant had failed to return the goods at the time agreed upon. Under S. 161 of the Contract Act, the loss of the goods sub­sequent to that period was the bailee's liability, fn the present case the contract was subsisting and during the continuance of the contract before he was called upon to return the goods, the goods were lost and the question therefore, will have to be determined as to whether under these circumsta­nces the custodian could be made liable as a bailee to return the goods or to refund its price. We accordingly allow this appeal, set aside the order of the court below and send back the case to him for investigation as to whether the appellant was or was not liable for the refund of the goods or for the payment of the price in view of the cir­cumstances of the case and whether he was entitled to claim the discharge of the contract on account of the subsequent event or that he could not be held liable as he had taken proper care of the goods required under section 151 of the Contract Act. The parties will bear their own costs. (18) DUTTA, J. : I agree. IE/B. Appeal allowed.