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Madhya Pradesh High Court · body

1977 DIGILAW 168 (MP)

Dey's Medical Stores Pvt. Ltd. v. Dhanya Kumar Dharamdas and Co.

1977-04-27

C.P.SEN

body1977
Short Note : The applicant got a decree dated 10-12-1970 for Rs. 3,949.51p. with costs and future interest at the rate of 6 per cent per annum against the non-applicants 1 to 3 in Civil Suit No. 241-B/70 from the Court of Vth Civil Judge, Class I, Indore. The decree was transferred to the Court of 1st Additional District Judge, Jabalpur, for execution. The applicant sought recovery of the amount by attachment of the decree dated 1-7-1959 for Rs. 59,533-12-3 p. obtained by the non-applicants 1 to 3 & 6 with costs and future interest at 6 per cent per annum in Civil Suit No. 6-B/59 against the non-applicants 4 & 5. By order dated 5-11-1974 the executing Court attached the decree in C.S. No. 6-B/59 and ordered issue of notices to the non-applicants of this attachment. It seems that none of the non-applicants except the non-applicant No.5 was served with the notice. The non-applicant No.5 was served with the notice No. 5-12-1974 not about the attachment of the decree against him but to show cause as to why the execution should not proceed against him. On 6-12-1974 the applicant moved another application under Order 21, rule 53 read with section 151 of the Code of Civil Procedure for issuing a prohibitory order regarding the amount of Rs. 6,200/- in deposit in C.C.D., towards the decree in C.S. No. 6-B/59. The executing Court allowed the application and issued a prohibitory order directing to the executing Court in C.S. No. 6-B/59 that the amount in deposit be not paid to anyone without further reference to the Court issuing the order and the Court also directed issue of notices of the prohibitory order to the non-applicants. In pursuance of this order, the executing Court issued a prohibitory order under Order 21, rule 52 of the Code directing that the amount of Rs. 5,695.69 p. in deposit in C.S. No. 6-B/59 be not paid to anyone. Only the notices issued to the non-applicants 1 & 2 were served on 18-3-1975 and the rest of the notices were returned unserved. The case was posted for 6-5-1975 for further orders. However, in the meantime, i.e. on 3-4-1975 the non-applicants moved an application for adjustment of the decree in C.S. No. 6-B/59 under Order 21, rule 2 of the Code saying that the decree under execution has been settled at Rs. 67,000/- out of which Rs. The case was posted for 6-5-1975 for further orders. However, in the meantime, i.e. on 3-4-1975 the non-applicants moved an application for adjustment of the decree in C.S. No. 6-B/59 under Order 21, rule 2 of the Code saying that the decree under execution has been settled at Rs. 67,000/- out of which Rs. 29,581.45p was in deposit in the C.C.D., and the balance amount of Rs. 37,438.55p. has been paid by the non-applicants 4 & 5 to the non-applicants 1 to 3 & 6 out of Court in full satisfaction of the decree. On the same day, the executing Court recorded full satisfaction of the decree in C.S. No. 6-B/59. Against the order recording full satisfaction of the decree in C.S. No. 6-B/59, the applicant has filed this revision petition challenging the impugned order as not being in compliance with Order 21, rule 53(6) of the Code. According to the applicant, the adjustment so recorded in contravention of the attachment order in his execution case is in contravention of Order 21, rule 53(6) of the Code which is liable to be set aside. Held : There is no dispute that on 5-11-1974 in execution case in C.S. No. 241-B/70, the decree in C.S. No. 6-B/59 was attached and notice of attachment was ordered to be issued. The applicant duty paid process fees for issuing notices to the non-applicants but unfortunately the notice served on the non-applicant No.5 was not about the attachment of the decree but was a show cause notice as to why the decree should not be executed against him. On 6-12-1974 notices of prohibitory order passed on that day were served on the non-applicants 1 & 2. No such notice was served on the non-applicants 4 & 5 who were the judgment-debtors in C.S. No. 6-3/59. Order 21, rule 53(6) provides that the Court making an order of attachment under this rule shall give notice of such order to the judgment-debtor bound by the decree attached and no payment or adjustment of the attached decree made by the judgment-debtor in contravention of such order after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in force. So it has to be seen whether the order of attachment was served on any of the judgment-debtors, i.e., non-applicants 4 & 5. So it has to be seen whether the order of attachment was served on any of the judgment-debtors, i.e., non-applicants 4 & 5. As mentioned earlier, only notice served was on the non-applicant No.5 and that was only a notice to show cause as to why execution should not proceed against him and it was not a notice of the attachment order. The notices served on the non-applicants 1 & 2 who were the decree-holders in C.S. No. 6-B/59 were about the prohibitory order passed on 6-12-1974 under Order 21, rule 52. They too were not served with the attachment order. There being no service of the attachment order as required under Sub-rule (6) the non-applicants were not prevented from recording of the adjustment of their decree. The adjustment so recorded on that day being not in contravention of this Sub-rule, cannot be challenged here by the applicant in this revision. Gowardhan v. Hargovind, 24 MPLC 274 : AIR 1939 Nag. 17 relied on. Revision dismissed.