K. A. Alwa v. Jagannath Prasad Varshney — 1992 DIGILAW 706 (ALL)

JUDGMENT : B.L. Yadav, J. Whether a moveable property in possession of custodian or Supurdar, in pursuance of an order of attachment-before-judgment can be restored in favour of Plaintiff-Respondents 1 to 3, after withdrawal of their suit, particularly when they were neither decree-holder or judgment debtor, nor they have any legal claim, is the main question for our determination in this custodian's First Appeal u/s 96 read with Order 21 Rule 43-A(2)(e) of the Code of Civil Procedure, 1908, (for short the Code), directed against the judgment and order dated 14-5-84, ed by the Additional Civil Judge. Allahabad in Misc. Case No. 34 of 1982 arising out of suit No. 219 of 1978 u/s 20 of the Arbitration Act, 1940 (for short the Act), filed by Plaintiff Respondents 1 to 4 which was withdrawn directing the Appellant to produce and hand over 10 tonnes of tissue papers given in his custody on 30-12-1978 by the Commissioner, or in the alternative to deposit a sum of Rs. 1, 30.000 as the present price of ten tonnes of tissue papers by 15-7-1984. In case there was any default, the Appellants, Respondents 1 to 3 shall have right to get it produced or released through the process of the Court 2. Factual matrix of the case is that Respondents 1 to 4 were partners of M/s. Varshney Roto Printers Alld and respondent No. 4 was the Managing Partner. The firm took loan of Rs 2,70,00/- from M/s Madan Agencies between 30-5-78 to 19-7-78 and also applied to Vijai Bank. Nizamabad (Andhra Pradesh), for a variety of loans. The firm gave a sum of Rs. 85000/- as advance to M/s. Pradeep Paper Agencies, Nizamabad, Andhra Pradesh to purchase 10 tonnes of tissue papers. The firm also purchased machines for printing and other materials. On 22-8-79 and 11-9-79 the Vijai Bank sanctioned a loan of Rs 100,000/-. This amount was paid to M/s. Madan Agencies against their loan to the firm. Again on 30-10-78 the firm took key loan of Rs. 56000/- from the Bank through Sri Bipin Behari, respondent No. 4, the Managing Partner, and it was transferred to Pradeep Paper Agency. Nizamabad. Sri Bipin Behari, the Managing Partner also took loan of Rs. 50000/- on 12-9-78 from the Bank and transferred it to his firm namely Bipin Behari Paper Agencies, Nizambad. 3. Respondent Nos. 56000/- from the Bank through Sri Bipin Behari, respondent No. 4, the Managing Partner, and it was transferred to Pradeep Paper Agency. Nizamabad. Sri Bipin Behari, the Managing Partner also took loan of Rs. 50000/- on 12-9-78 from the Bank and transferred it to his firm namely Bipin Behari Paper Agencies, Nizambad. 3. Respondent Nos. 1 to 3 as the partners of the firm entertained sus-picision against respondent No. 4 Bipin Beharl. the Managing Partner. Consequently they filed a suit No. 219 of 1978 u/s 20 (twenty) of the Arbitration Act, 1940 in the Court of Civil Judge, Allahabad, and also gave a notice of dissolution of the firm. A copy of the said notice was also sent to the Bank. On 10-12-78 the Plaintiff Respondents 1 to 3 moved an application for passing an order for attachment-before-judgment in respect of machines and 10 tonnes of tissue papers and also furnished security for a sum of Rs. 75,000 to Bipin Behari, respondent No. 4, lying with. Rohtas Industries, New Delhi. The Additional Civil Judge, Allahabad passed an order for attachment on 18-12-78 (page 24 of the first paper book). Thereafter an application was filed by Plaintiff-respondent Nos. 1 to 3 for appointment of Jagat Pal Singh, as Commissioner to execute its order dated 18th December, 1978. The parties gave consent for the appointment of Sri K.A. Alwa, Appellant, the Branch Manager of the Vijai Bank, Nizamabad, Andhra Pradesh, as custodian (Supurdgar). Consequently, a number of articles including Rotary machines (printing) and other articles which were earlier hypothecated to Vijai Bank, were given in his custody on 30-12-78 (Paper 27-C, pages 25 and 26 of the first paper book). That supurdginama indicates that these articles were given in his Supurdgi, but no conditions were indicated for supurdgi, nor there was any indication about the liability of supurdgar. The Commissioner submitted his report on 22-1-79 (Paper 27-C). Other grievances were satisfied with the consent of parties and only 10 tonnes of tissue papers in the custody of custodian are in dispute. The suit was withdrawn by the Plaintiff respondent Nos. 1 to 3 on 28-2-79. Thereafter an application u/s 145, 151 read with Order 21 Rule 43-A of the Code was moved by the Plaintiff respondent on 26-5-82. The suit was withdrawn by the Plaintiff respondent Nos. 1 to 3 on 28-2-79. Thereafter an application u/s 145, 151 read with Order 21 Rule 43-A of the Code was moved by the Plaintiff respondent on 26-5-82. There after Misc Application No. 24 of 1982 u/s 145 read with Order 21 Rule 43-A of the Code was filed by Sri J.P. Varshney, Plaintiff respondent against Sri Bipin Behari and the present Appellant Sri K.A. Alwa (page 9 of the first paper book), with the prayer that notice may be issued to Sri K.A. Alwa to produce and supply 10 tonnes of tissue papers by 30-8-78 to Jagat Pal Singh, the Commissioner, or to deposit a sum of Rs. 1,30,000/- as price of the aforesaid tissue paper. That application was sup-ported by an affidavit (Paper 14-C page 19 of the first paper book). 4. Application moved by Plaintiff Respondents 1 to 3 was contested by the present custodian Appellant and the allegations in para 4 of the objections were material. The ownership of Plaintiff Respondents 1 to 3 in respect of ten tonnes of tissue papers (63 reels) was denied. These tissue papers were attached before judgment in Suit No. 219 of 1978 filed by Plaintiff Respondent Nos. 1 to 3. The said quantity of tissue papers does not belong to Varshney Roto Printers. This was attached under the directions of the Commissioner appointed by the Additional Civil Judge, Allahabad in Original suit No. 219 of 1978 But these tissue papers were hypothecated to the Vijaya Bank prior to 19-3-1978 for the loan advanced by the Bank to Pradeep Paper Agencies and it was reported to the Commissioner at the time of attachment. In other words, before order of attachment-before judgment, ten tonnes of tissue papers were already under hypothecation with Vijaya Bank Under para 7 it was also denied that the said tissue papers were shifted by Bipin Behari to Godown 8 of Compound, Nizamabad. It was submitted that the said tissue papers were lying in Mirchi Compound under hypothecation of Vijaya Bank from 29-9-89. Similarly other allegations were also denied including under para 13 it was alleged that a suit No. 219 of 1978 filed by Respondents Nos. 1 to 3 u/s 20 of the Act was dismissed, the tissue papers need not be restored to the Plaintiff as the same was hypothecated with the Vijaya Bank. Similarly other allegations were also denied including under para 13 it was alleged that a suit No. 219 of 1978 filed by Respondents Nos. 1 to 3 u/s 20 of the Act was dismissed, the tissue papers need not be restored to the Plaintiff as the same was hypothecated with the Vijaya Bank. Suit No. 12 of 1979 filed by Vijaya Bank against Plaintiff Respondents 1 to 3 and others was decreed against the Plaintiff Respondents 1 to 3 on 24-4-82 (vide pages 49 to 115 of the first paper book), and the title of Plaintiff Respondents 1 to 3 to the said tissue papers was negatived. That judgment would operate as res-judicata. The application filed by Respondents 1 to 3 was time barred as it was filed after three years from the date of order. It was not in the form of execution or restitution application. Sri Bipin Behari also filed a counter affidavit and denied the allegations made in the affidavit of Sri Varshney and his title to the said quantity of tissue papers. Other averments in the application and affidavit of respondent Nos. 1 to 3 were also denied vide para 6 and other paras (vide paper No. 65-Ga, page 95 of the second paper book. The learned Civil Judge, Allahabad, however by his order dated 14-5-84 fallowed the application (vide paper 25-A/1 (pages 223 and 134 of the first paper book), and the Appellant was directed to produce and hand over 10 tonnes of tissue papers given in his custody. Against this judgment and order of the present appeal has been filed. 5. Sri Prakash Krishna and Sri R.R. Agarwal, learned Counsel for the Appellants urged that as the suit filed by Plaintiff respondent Nos. 1 to 3, in which order of attachment was passed and Sri K.A. Aiwa was appointed as Supurdgar, was withdrawn on 28-2 79, hence after withdrawal of the suit there remains no decree in favour of Plaintiff-Respondents 1 to 3. Section 145 as amended by the State of Uttar Pradesh read with Order 21 Rules 43 and 43-A of the Code would lead to the conclusion that it is the person who has been found to be entitled to restoration of property attached or in whose favour the court has passed an order while deciding the suit can be held to be entitled to claim the property from the Supurdgar. Both the words 'or' under Sub-clause (2) of Rule 43-A are disjunctive and not conjunctive, the clause subsequent to first word 'or' i.e. "to restore it to the person in whose favour restoration is ordered by the Court", was material and the second word 'or' under Sub-rule (2) was also disjunctive and the provision made thereafter is in respect of moveable property so restored, but in case it was not in the same condition as it was entrusted to him. In other words, after the second word 'or' the provision is with regard to damages to be claimed by a person who was found to be entitled to the restoration of moveable property. Hence that clause (subsequent to the second word 'or'), was not material in the present appeal The suit filed by Vijaya Bank against M/s. Varshney Printers and Bipin Behari and also the present Plaintiff Respondents 1 to 3, decided by the Subordinate Judge at Nizamabad, Andhra Pradesh, decreeing the suit against the present Plaintiff Respondents 1 to 3, by the judgment and decree dated 24-4-82 holding that Plaintiff Respondents 1 to 3 were not owners of the said ten tonnes of tissue papers, would operate as res judicata, as that judgment and decree became final In view of provisions of Order 21 Rule 43-A read with Section 145 of the Code there was no liability of the custodian in the Supurdginama, hence he was not entitled either for restoration of any order or for execution of any order in the absence of any title or some legal right in favour of Plaintiff Respondents I to 3, their application was not maintainable, or the same can be allowed, nor it was an application by way of restitution or execution, hence Article 136 of the Limitation Act, 1963 would not apply, rather residuary Article 137 of the Limitation Act prescribing three years limitation would apply. As the Order for withdrawal of suit was passed on 28-2-79, the application was filed on 26-5-82. As the Order for withdrawal of suit was passed on 28-2-79, the application was filed on 26-5-82. much after three years, the application was accordingly time barred, and in any case, in the suit filed by the Vijaya Bank the title to the tissue papers was decided in favour of the Bank hence Respondents 1 to 3 shall have no right in the absence of any order in their favour as required by Order 21 Rule 43-A(2) to make an application directing the custodian (the Supurdar) to furnish the property attached under the Supurdginama. Reliance was placed on a Supreme Court decision, Vannarakkal Kallalathil Shreedharan v. Chandramaath Balakrishnan 1990 (1) AWC 569 . 6. Agarwal, learned Counsel for the Respondents 1 to 3, On the other hand, urged that the application filed by the Plaintiff respondent was maintainable under Order 21 Rule 43-A read with Section 145 of the Code as amended by the State of Uttar Pradesh and the application has correctly been allowed under the impugned judgment and order, and that Article 136 for execution of decree or restitution would apply and the application could have been filed within 12 years, and the same within time, and that the judgment and decree dated 24-4-82 rendered by the Subordinate Judge, Nizamabad in Original Suit No. 12 of 1979 between Vrjai Bank and Plaintiff Respondents 1 to 3 would not operate as res judicata, and that on a correct construction of Section 145 as amended by the State of Uttar Pradesh and Order 21 Rule 43-A of the Code, the Custodian was liable to return the movable properties attached, particularly 10 tonnes of tissue papers. Consequence of withdrawal of suit No. 219 of 1978 filed by Plaintiff Respondents 1 to 3 against Bipin Behan was immaterial. The present appeal was liable to be dismissed. Reliance was placed on a Full Bench decision in Krishna Gopal v. Gokul Prasad AIR 1970 All 261 (FB) Abdul Rashid Vs. Firm Wajid Ali Abdi Ali, AIR 1985 All 239 , Sheikh Rahimuddin v. Murlidhar AIR 1938 Lah 593; Ram Lagan v. Basdeo 1981 ACJ 165; Rami Reddi Chinna Vobula Reddi v. Kethepalli Gurumurthy AIR 1933 Mad. 219. 7. Reliance was placed on a Full Bench decision in Krishna Gopal v. Gokul Prasad AIR 1970 All 261 (FB) Abdul Rashid Vs. Firm Wajid Ali Abdi Ali, AIR 1985 All 239 , Sheikh Rahimuddin v. Murlidhar AIR 1938 Lah 593; Ram Lagan v. Basdeo 1981 ACJ 165; Rami Reddi Chinna Vobula Reddi v. Kethepalli Gurumurthy AIR 1933 Mad. 219. 7. Having heard learned Counsel for the parties the points for determination arrears to whether after withdrawal of Suit No. 219 of 1978 filed by Plaintiff Respondents 1 to 3 against Bipin Behari etc., they were entitled to claim restoration of property attached and entrusted to the Appellant Sri K.A. Aiwa; whether after reading Section 145 as amended by the State of Uttar Pradesh and Order 21 Rule 43 and 43-A of the Code together, was if the intention of legislature to entitle the person who have no right or title, nor he was decree-holder or judgment debtor; whether the first and second word 'or' used in Sub-rule (I) of Rule 43-A of Order 21 was disjunctive or conjunctive; whether the application filed by Plaintiff Respondents 1 to 3 was barred by limitation; and whether the judgment and decree in suit No. 12 of 1979; Vijai Bank through its Manager K.A. Aiwa v. Varshney Roto Printers and Ors. would operate as resjudicata. 8. Before placing the interpretation on Section 145 read with Order 21 Rule 43-A etc. of the Code certain elementary principles of interpretation of statutes pertaining to procedural law may be noticed. It is well known that the rules of procedure are not themselves an end, rather they are the means to achieve ends of justice. They are tools in the hands of the court to do justice. They need not be interpreted in a pedentic way so as to create obstruction in the path of Justice. Procedural law has to be interpreted so that the same may promote justice and prevent its miscarriage. These rules are framed to enable the courts to do justice. These rules are not to be rigidly interpreted so as to frustrate the cause of justice. In such matters court have to make a pragmatic approach so that the cause of justice may not be obstructed. 9. These rules are framed to enable the courts to do justice. These rules are not to be rigidly interpreted so as to frustrate the cause of justice. In such matters court have to make a pragmatic approach so that the cause of justice may not be obstructed. 9. In the present case what is to be noticed is that 10 tonnes of tissue papers and other properties were already hypothecated to the Vijai Bank by M/s Varshney Roto Printers including Plaintiff Respondents 1 to 3 of Suit No. 219 of 1978 on account of loan being obtained. The instalment of that loan was however, not paid regularly by M/s. Varshney Printers and its partners. Consequently the Vijai Bank through its Manager K.A. Aiwa had to rile suit No. 12 of 1979 in the Court of Subordinate Judge. Nizamabad against M/s. Varshney Roto Printers and others for recovery of Rs. 1, 05, 013-40 against Plaintiff Respondents 1 to 3. That suit was contested by the present Plaintiff Respondents 1 to 3 and title of 10 tonnes of tissue papers were challenged and additional issues Nos. 1 to 3 were also framed to the effect as to whether ten tonnes of tissue papers lying in Lulgi No. 7-3-187/3 Mirchi Compound Godown No. 8 was owned by the first Defendant firm; and whether the Plaintiff colluded with Defendant No. 2, namely Bipin Behari. These tissue were ultimately decided against the present Plaintiff Respondents 1 to 3 and the firm M/s. Varshney Roto Printers by by the judgment and decree dated 24-4-82. These findings in that judgment and decree became final and would operate as res judicata and were binding on the Plaintiff respondants 1 to 3. 10. Prior to the suit No. 12 of 1979, Plaintiff Respondents 1 to 3 had filed the suit No. 219 of 1979 u/s 20 of the Act, in the Court of Additional Civil Judge, Allahabad against Bipin Behari etc. and that suit was withdrawn on 28-2-79. 10. Prior to the suit No. 12 of 1979, Plaintiff Respondents 1 to 3 had filed the suit No. 219 of 1979 u/s 20 of the Act, in the Court of Additional Civil Judge, Allahabad against Bipin Behari etc. and that suit was withdrawn on 28-2-79. In that suit No. 219 of 1979 an order for attachment before judgment was obtained by order dated 18-12-78 and it was directed that attachment be issued regarding properties mentioned in paras 12 and 7 of 13-C and a supmrdginama was executed on 30-12-79 and Sri K.A. Aiwa, the present Appellant was appointed as Supurdgar and 10 tonnes of tissue papers and some other articles were given in his custody (vide paper 27-C page 25 of the first paper book). But after the withdrawal of suit on 28-2-79 under Order 23 Rule 1 of the Code filed by the Plaintiff Respondents 1 to 3 (Paper 37-Ka, page 67 of the second paper book, as the firm was not registered (vide paper 'D' Ka-2/3 pages 69 to 71 of the second paper book), Respondents 1 to 3 cannot be said neither decree holders, nor the judgment debtors. Even if 10 tonnes of tissue papers along with the aforesaid articles were entrusted to the supurdgi of Sri K.A. Aiwa as the Manager of Vijai Bank, there could be no justification for the claim of Plaintiff Respondents 1 to 3, nor these papers could be brought to the court of Additional Civil Judge, Allahabad, particularly when the same was already hypothecated on account of loan being obtained by the Plaintiff Respondents 1 to 3 from the Vijai Bank, in respect of which the suit filed by the Vijai Bank has already been decreed against them on merits. The suit was hotly contested by the present Plaintiff Respondents 1 to 3 and an issue about title to 10 tonnes of tissue papers was already framed and decided against the Plaintiff Respondents 1 to 3 Much emphasis was laid by Sri S.D.P. Agarwal on Explanation to Section 145 as amended and substituted by the State of Uttar Pradesh after the existing Section 145 the following was to be substituted in view of the Uttar Pradesh amendment. 145. 145. Where any person has become liable as surety or given any property as security, (a) for the performance of any decree of any part thereof; or (b) for the restitution of any property taken in execution of any decree; or (c) for the payment of any money, or for fulfilment of any condition imposed of any person, under an order of the court in any suit or in proceeding consequent hereon, the decree or order may be executed in the manner herein provided for the Mention of decree. (i) if he has rendered himself personally liable against him to that extent; and (ii) if he has given any property as security, by sale of such property to the extent of the security: and such person shall, for the purposes of appeal, be deemed to be a party within the meaning of Section 47: Provided that such notice as to the court in each case thinks sufficient has been given to the surety. Explanation.--For the purposes of this section a person entrusted by a court with custody of any property attached in execution of any decree or order shall be deemed to have become liable as surety for the restitution of such property within the meaning of Clause (b). 11. A bare perusal of Section 145 of the Code would indicate that a person who has become liable as surety or given any property as security for the performance of any decree of for restitution of any property taken in execution of any decree; or for payment of any money in that event decree of order can be executed against him and he shall be liable for the performance of decree to the extent he has rendered himself liable, and the property in his possession shall be liable to be sold to the extent of security. The Explanation to the Section 143 was that a person entrusted by the court with the custody of any property attached, shall become liable as surety for the restitution of such property within the meaning of Clause (b) of Section 145 as added by Uttar Pradesh In the present case the Plaintiff Respondents were not seeking any restitution of property entrusted or given in supurdgi of Shri K.A. Aiwa, the Appellant after reversal of any decree, nor there was any decree of order in favour of Plaintiff Respondents, 1 to 3, entitling them to have 10 tonnes of tissus papers in their possession. What is to be noticed is that while directing the withdrawal of suit, on 28-2-79, the court did not direct that 10 tonnes of tissue papers would be taken back from the possession of Sri K.A. Aiwa, the Appellant and it shall be given in possession of Plaintiff-Respondents 1 to 3, or the same would be brought before the court, keeping in view that 10 tonnes of tissue papers were lying hypothecated with the Vijai Bank as a security for debt incurred or loan obtained by the Plaintiff Respondents. We are, accordingly of the view that Plaintiff Respondents 1 to 3 were not entitled to claim the benefit of Section 145. 12. Coming to the provisions of Order 21 Rules 43 and 43-A, it may be stated that Rule 43 of Order 21 was not applicable to the present case as that provides the procedure about property other than agricultural produce in possession of judgment debtor. Rule 43 Order 21 provides procedure for attachment by actual seizure and that the attaching officer shall keep the property in his custody. There was a proviso added to Rule 43 indicating that when the property seized was subject to speedy decay, he may sell it at once. 13. To put it differently, Rule 43 deals with attachment of movable properties in possession of judgment debtor, whereas in respect of property not in possession of the, judgment-debtor the provisions are under Rules 44 to 46. Rule 43, however, provides attachment of property of which the judgment debtor is full owner and in possession. Rule 46, however, provides procedure where the property of judgment debtor is not in his possession, but in possession of third party. Rule 47, deals with the case where the judgment debtor is not the full owner. Rule 43, however, provides attachment of property of which the judgment debtor is full owner and in possession. Rule 46, however, provides procedure where the property of judgment debtor is not in his possession, but in possession of third party. Rule 47, deals with the case where the judgment debtor is not the full owner. The procedure that has been provided under Rule 43 is the attachment of movable property other than agricultural produce by actual seizure. In other words, before Rule 43 is applied two conditions have to be fulfilled. First, there must be an order for attachment and secondly actual seizure of property in execution of order. The attachment is made by actual seizure, hence it comes to the possession of court. Either it is taken in possession of Supurdar or it comes in the custody of an officer of the court. 14. First, there must be an order for attachment and secondly actual seizure of property in execution of order. The attachment is made by actual seizure, hence it comes to the possession of court. Either it is taken in possession of Supurdar or it comes in the custody of an officer of the court. 14. Before we actually consider the scope of Rule 43-A of Order 21 of the Code, ex-abundanti cautela, the statutory provisions so far as they are relevant, are set out below: 43-A. Custody of moveable property.--(1) where the property attached consists of live stock, agricultural implements or other articles which cannot conveniently be removed and the attaching officer does not act under the proviso to Rule 43, he may at the instance of the judgment debtor or of the decree holding or any other person claiming to be interested in such property leave it in the village or place where it has been attached, in the custody of any respectable person (hereinafter referred to as the custodian), (2) If the custodian falls, after due notice to produce such property at the place named by the court before the officer deputed for the purpose, or to restore it to be the person in whose favour restoration is ordered by the court, or if the property, though so produce or restored, is not in the same condition as it was when it was entrusted to him,-- (a) the custodian shall be liable to pay compensation to the decree holder, judgment-debtor or any other person who is found to be entitled to the restoration thereof, for any loss or damage caused by his default; and (b) such liability may be enforced-- (i) at the instance of the decree holder, as if the custodian were a surety u/s 145; (ii) at the instance of the judgment bettor or such other person, on an application; and (c) any order determining such liability shall be appeal able as a decree. 15. Rule 43-A added by Code of Civil Procedure, Amendment Act, 1976 contemplates three contingences. The first is contemplated by Sub-rule (1). It is to the effect that in case the attaching officer does not act under the proviso to Rule 43, i.e. where the property seized from the possession of judgment debtor was subject to speedy decay, the attaching officer was to sell it at once. The first is contemplated by Sub-rule (1). It is to the effect that in case the attaching officer does not act under the proviso to Rule 43, i.e. where the property seized from the possession of judgment debtor was subject to speedy decay, the attaching officer was to sell it at once. Rule 43-A, provides that in case the attaching officer does not act in accordance with the proviso to Rule 43, i.e. he does not sell the property attached when it is subject to speedy and natural decay, in that event, at the instance of judgment debtor or the decree holder or at the instance of any other person interested in such property, he may leave it in the village in the custody of a respected person. Sub-Rule (1) of Rule 43-A is also not material for the present appeal. 16. Sub-rule (2) of Rule 43-A of Order 21 is relevant for our purpose Sub-rule (2) of Rule 43-A provides duties of custodian. Sub-rule (2) is in three parts. First is that in case the custodian fails after having received notice to produce such property at the place indicated by the court before an officer deputed, the court would obviously direct the custodian to produce such property, but only at the instance of either the decree holder, or the judgment debtor or at the instance of a third party interested and having some legal claim. In the present case the plain tiff Respondents 1 to 3 were neither judgment debtor nor decree holder nor they have any legal claim. Consequently, first part of Sub-rule (2) would also not ensure for the benefit of Respondents 1 to 3. In the second part of Sub-rule (2) which opens with the word 'or' and subsequent to that the clause is to the effect that if custodian fails to restore it to the person in whose favour restoration is ordered by the court. The third part of Sub-rule (2) of Rule 43 is after the second word 'or'. This third part provides liability of custodian in case property entrused was not in the same condition when produce or restored. The third part of Sub-rule (2) of Rule 43 is after the second word 'or'. This third part provides liability of custodian in case property entrused was not in the same condition when produce or restored. In other words, in case the property produce was not in the same condition, as entrusted to the custodian, he shall be liable for compensation as provided under Sub-rule 2(a) of Rule 43-A. This third part of Sub-rule (2) is also not material for our purpose as it is not the case of Plaintiff-Respondents 1 to 3 that property when produced was not the same condition as entrusted to the custodian or surety. 17. What seems to be material is the second part of Sub-rule (2) which is preceded by the word 'or' and prior to that the provision is that after due notice in case the custodian fails to produce such property at the place named by the court. 18. One of the relevant question is as to whether the first word 'or' in the second clause of Sub-rule (2) is conjunctive or it is disjunctive. Elementary rules of interpretation of conjunction 'or' would not be out of place. In Uddin v. A.P.C Manufacturers Ltd (1965) 2 OB 582, it was held that ordinarily word 'or' as disjunctive and word 'and' is conjunctive. But in order to carry out the intendment of the legislature, and if the context so requires the word 'or' may be as 'and'. In other words, just with a view to avoid absurd consequence the court can substitute word 'and' (conjunctive) for word 'or' (disjunctive). (See John G. Stein and Co. Ltd. v. O Henlon 1965 AC 890. 19. In F.S.N. Co. Ltd. v. Deptt of Trade and Industry (1974) 2 All FR 97, it was agreed by Lord Reid that there was power in court to substitute 'and' for 'or'. Under the provisions of Section 1 of Oil Nevigable Waters Act, 1955, in the expression the owner 'or' master, the word 'or' (disjunctive word) was substituted for word 'and' which was conjunctive. It was regarded as surgery rather than therapeutics, in our opinion, the word 'or' is disjunctive and the word 'and' is conjunctive But according to the context, object and purpose of the provision the word 'or' is interpreted as conjunctive and the word 'and' becomes disjunctive. It was regarded as surgery rather than therapeutics, in our opinion, the word 'or' is disjunctive and the word 'and' is conjunctive But according to the context, object and purpose of the provision the word 'or' is interpreted as conjunctive and the word 'and' becomes disjunctive. In other words, even though the legislature might have used or as disjunctive, but if the reference to context and the object sought to be attained indicates, the court can substitute the word 'and' conjunctive, for word 'or' which is apparently disjunctive. In the present case, however, the first part of Sub-rule (2) is different, which provides that in case the custodian fails to produce such property at the place named by the Court However, after the word 'or' there is a different clause providing the liability and duty of custodian to restore the property to the person in whose favour restoration is ordered by the court The word 'or' is obviously used as disjunctive by the legislature. This second clause is however relevant for our purpose. The restoration of property, in the possession of custodian or the Supurdgar can be ordered by the court only in favour of the person, in whose favour that property is directed to be restored by the court. That can be done only when the person, in whose favour the property is to be restored from the possession or custody of Supurdgar is either a judgment debtor or a decree holder or a third party having some legal right. 20. In the present case the Plaintiff Respondents 1 to 3 having lost the earlier suit No. 12 of 1979 and findings were recorded in that suit against them in respect of title of 10 tonnes of tissue papers by the judgment and decree dated 24-4-82 and that decree having become final, even though prior to that the Plaintiff Respondents had filed the present suit, but that was withdrawn. The Plaintiff Respondents were neither decree holder nor a third person having some legal right or claim in the property attached, nor they were judgment debtor nor it can be said that they were seeking execution or restitution on the basis of any order in their favour. The Plaintiff Respondents were neither decree holder nor a third person having some legal right or claim in the property attached, nor they were judgment debtor nor it can be said that they were seeking execution or restitution on the basis of any order in their favour. Consequently, there was no justification on the part of Additional Civil Judge, Allahabad to allow the application No. 24 of 1982 filed by the Plaintiff Respondents 1 to 3 by the impugned judgment and order. The third part of Sub-rule (2) deals with the provision when the property is not in the same condition as it was when it was entrusted to the custodian. How demages can be claimed Supurdar has been provided by third contingency contemplated after the use of second word 'or' in Sub-rule (2). For that we are not concerned in the present case as it was not controversy that the property attached and restored was not in the same condition as it was when it was entrusted to the custodian. Consequently, we are not concerned with the last part of Sub-rule (2) of Rule 13-A. The interpretation of those provisions can be made in a bit detail when the same is directly involved in some appropriate case. 21. There is yet another aspect of the matter, Order XXXVIII deals with arrest and attachment before judgment, Order 21 Rule 43-A may be read conjointly with Rules 9 and 11-A of Order XXXVIII. In brief attachment before judgment can be withdrawn when security is furnished or when suit is dismissed. The attachment is withdrawn when the suit is dismissed in default. But the attachment does not revive merely because the suit has been restored (vide Rule 11-A of Order XXXVIII added by CPC (Amendment) Act, 1976. In the present case withdrawal of suit has substantially the same effect as dismissal in default. As suit No. 219 of 1978 filed by Plaintiff Respondents 1 to 3 was withdrawn, hence the attachment before judgment stood withdrawn and the learned Additional Civil Judge erred in directing the property attached to be restored in favour of Plaintiff Respondents 1 to 3. 22. Coming to the question of limitation as to whether the application by the Plaintiff Respondents 1 to 3 for restoration of the property was within time or not ? 22. Coming to the question of limitation as to whether the application by the Plaintiff Respondents 1 to 3 for restoration of the property was within time or not ? The learned Counsel for the Appellant urged that residuary Article 137 of the Limitation Act, 1963 would apply and the period of limitation was only three years. The order of withdrawal of suit was passed on 28th February. 1979. The apparition u/s 145 read with Order 21 Rule 43-A was filed on 76 5-82 hence it was time barred. Whereas the learned Counsel for Respondents 1 to 3 urged that Article 136 providing the limitation of 12 years for execution of any decree (other than a decree granting mandatory injunction) or order of any civil court, would apply and the application being within 12 years, was within prescribed period. 23. We are conscious that the statute of limitation is a disabling enactment, it is to be interpreted applying grammatical interpretation in view of the plain language Being a statute of repose hence controversies need not be kept alive indefinitely. The language of the provision as it stands has to be interpreted and need not be stretched As far as possible consistent with the provisions as they stand, a strict construction in favour of right to proceed must be made. 24. In Halsbury's Laws of England 4th Edn., Vol 28 para 605, three respons have been indicated in support of statute of limitation: 1st. Long dormant claims have more of cruelty than justice in them. 2nd that a Defendant might have lost evidence in support of his claim, or to disprove a stale claim. 3rd. persons with good cause of action must pursue them with reasonable diligence. (See R.B. Policies v. Butler (1950) 1 KB 767 at 81; Jones v. Bellgrove Properties Ltd. (1949) 2 KB 700 at 704, Board of Trade v. Cayzer Irvina and Co. (1927) AC 610. 25. As to whether Article 136 or 137 would apply? Article 136 provides limitation for execution of decree or order (other than a decree granting mandatory injunction). The object of the statute of Limitation is 'not to create any rights but to prescribe period within which legal proceedings may be instituted for enforcement of rights which exist under the substantive law. In common parlance execution means best stage of a suit whereby a decree of judgment is enforced. The object of the statute of Limitation is 'not to create any rights but to prescribe period within which legal proceedings may be instituted for enforcement of rights which exist under the substantive law. In common parlance execution means best stage of a suit whereby a decree of judgment is enforced. The process of execution continues till all claims under the judgment are satisfied. 26. Certain maxims are relevant : "Executio Est Executio Juris Secundum Judicium" means execution is the execution of the law according to the judgment. The second maxim is "Executio Est Finis ed Fructus Legis" which connotes that the execution is the end and the fruits of law. The next maxim is "Executio Juris non Habed Injuriam" connotes that the execution of process of law does 'ho injury. 27. For execution of decree it is necessary that first there must be a decree in favour of decree holder. Decree as defined u/s 2(2) of the code means the formal expression of an adjudication which conclusively determines the rights of parties. Here there is no decree, judgment or order in favour of Plaintiff Respondents 1 to 3. It was also urged for Respondents 1 to 3 that application on their behalf was by way of restitution. Restitution treans an act of restering or compensating for loss or injury by reverting as for as possible to original position. This is dune when a decree or order is reversed in appeal of revision. The maxim is "Restitutio in Integrum" which means restoration to the original position. 28. In Union Carbide Corporation, etc., etc. Vs. Union of India, etc. etc., (1991) 4 SCC 584 . para 75 it was observed that restitution Is an equitable Doctrine and is subject to the discretion of the court. Under paras 75-76 it was observed: Restitution is an equitable principle and is subject to the discretion of the Court. Section 144 Code of Civil Procedure, embodying the doctrine of restitution does not confer any new substantive right to the party not already obtaining under the general law. The section merely regulates the power of the court in that behalf. But, in the present case, Section 144 CPC does not in terms apply. There is always an inherent jurisdiction to order restitution a fortiorari where a party has acted on the faith of an order of the court. The section merely regulates the power of the court in that behalf. But, in the present case, Section 144 CPC does not in terms apply. There is always an inherent jurisdiction to order restitution a fortiorari where a party has acted on the faith of an order of the court. A litigant should not go back with the impression that the judicial process so operated as to weaken his position and whatever it did on the faith of the courts order operated to its disadvantage. It is the duty of the court to ensure that he was no litigant goes back with a feeling that he was prejudiced by an act which he did on the faith of the court's order. Both on principle and authority, it becomes the duty of the Court-as much oral as it is legal to order refund and restitution of the amount to the-UCC if settlement is set aside. 29. But in the present case there was no decree in favour of Respondents 1 to 3, nor they can claim benefit of equitable doctrine of restitution as there was no reversal of decree or order in their favour. In our opinion, Article 136 would not apply. Even assuming, though not conceding, that Respondents 1 to 3 are under the impression that by withdrawal of suit they have got an order, but that cannot be said to be a decree, nor reversal of a decree or order, hence neither they can claim execution nor restitution. At best it can be said that such national order in favour of Respondents 1 to 3, there is nowhere else any Article prescribing period of limitation, hence residuary Article 137 would apply and there was only three years period of limitation for making an application and that has expired when application was filed as indicated above, we are accordingly of the opinion that application of Respondents 1 to 3 was barred by limitation. 30. As regards the case law cited by the learned Counsel from either side. In V.K. Sridharan v. Chandramaath Balkrishnan (Supra), their lordships of the Supreme Court have ruled that in case in respect of a property there was an agreement for sale and later on the property was attached, nevertheless that would not effect the sale which was executed subsequent to attachment. In V.K. Sridharan v. Chandramaath Balkrishnan (Supra), their lordships of the Supreme Court have ruled that in case in respect of a property there was an agreement for sale and later on the property was attached, nevertheless that would not effect the sale which was executed subsequent to attachment. The analogy can be drawn in the present case that as the property in dispute including 10 tonnes of tissue papers were already in hypothecation with the Vijai Bank, Andhra Pradesh, hence the subsequent attachment of that property would have no effect as that hypothecation would continue till the loan advanced was paid by the Plaintiff Respondents. As the suit filed by the Vijai Bank has already been decreed against the Plaintiff Respondents, hence there was no justification on the part of Plaintiff Respondents to claim any right or to claim a right directing Sri K.A. Aiwa, either Appellant (custodian) to produce the property either before the court of Additional Civil Judge, Allahabad or to hand it over the possession of Plaintiff Respondents. 31. Reverting to the case cited by Sri S.O.P. Agarwal, learned Counsel for the Respondents, Ram Lagan v. Basdeo 1981 ACJ 166 (supra) that was a case u/s 145 of the Code in respect of Court's jurisdiction in respect of property attached but the same was not returned by the Supurdgat and the value of such property was to be ascertained. In the present case, however, value of such property was not to be ascertained. Hence that case is besides the point. 32. Abdul Rashid v. Firm Wajid Ali Abid Ali (Supra) was a case in respect of Order 21 Rules 122 and 123 where the judgment debtor's property was attached and given in the custody of Supurrlgar. What was liability of judgment debtor in such cases, was decided in that case. In the present case, however, the movable property was attached and hence that case would not be of any helf to plantiff Respondents. 33. Krishna Gopal v. Gokul Prasad (Supra), was a case where the Full Bench was considering the scope of Sections 144 and 145 of the Code read with Order 21 Rule 60, and it was held that restitution can be claimed even where the order of attachment is modified in any manner and the property in possession of Supurdgar shall be restored back to the original claimant. That case is also of no assistance to the Respondents as after decretal of suit filed by the Vijai Bank against the Plaintiff Respondents, they cannot be said to be original claimants. That case is entirely distinguishable, inasmuch as either the Plaintiff Respondents should .have been the decree holder or they should have some legal rights or claim or they should have been original-claimants and only in that event they could claim possession of the moveable property, attached and given in possession of the Supu-rdar or custodian. 34. Rami Reddi Chinna Vobula Reddi v. Kethepalli Gurumurthy (Supra) was a case in respect of Articles 182 and 65 of the Limitation Act, 1908, but now under the new Limitation Act the provisions of Articles 136 & 137 are somewhat different, hence the above case is also of no assistance. 35. Similarly Harendra Kumar Ghosh v. Gurupada Bhowmick (Supra) was also a case pertaining to interpretation of Articles 181 & 182 of the old Limitation Act, 1908, where the provisions of present Articles 136 and 137 are different. Hence that case is also of no assistance. 36. Sheik Rahimuddin Alia Dia v. Murli Dhar, (Supra), was a case in respect of Section 145 of the Code and it was held that notice to surety was essential and that notice can be given either by the court passing the decree or by the court to which it has been sent for execution. In the present case there was no question of execution of any decree as there was o such decree in favour of Plaintiff Respondents. That case is also of no assistance. 37. Chakkuyarkey v. Devassy Kathanar (Supra), was a case in respect pf Article 182(2) of the old Limitation Act and was not of any assistance in Interpreting Articles 136 and 137 of the new Limitation Act. 38. In view of the premises aforesaid and applying the principles of Aristotalean and Baconian reasonings, the impugned judgment and order dated 14-5-84 passed by the learned Additional Civil Judge, Allahabad cannot be sustained. 39. In the result the present appeal succeeds and is allowed with costs throughout. The judgment and order dated 14-5-84 passed by the Additional Civil Judge, Allahabad is set aside and the application of Plaintiff Respondents 1 to 3 is hereby dismissed.