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2002 DIGILAW 198 (HP)

ASHOK KUMAR v. HINDUSTAN LEVER LTD.

2002-07-12

K.C.SOOD

body2002
JUDGMENT Kuldip Chand Sood, J.—This revision petition is directed against orders of the learned Sub Judge (Court No. 3), Mandi, dated 30th August, 2001. 2. It appears, decree holder Ashok Kumar, the petitioner herein, obtained a decree for Rs. 4,819 in Civil Suit No. 215/98 on 24th November, 1998 against the judgment debtor M/s. Hindustan Lever Limited, Mumbai, Maharashtra. On 24th November, 1998 the decretal amount was not paid inspite of the demands made by the decree holder. In the circumstances, an execution petition was taken out by the decree holder on 7th March, 2000 before the learned executing court. The decree holder claimed Rs. 4,819 decretal amount, Rs. 1,108 interest from March, 1998 to 21st April, 2000 and costs of the suit, in all Rs. 8,205 were sought to be recovered. Inspite of notice, the judgment debtor did not appear and was proceeded against ex-parte on 15th September, 2000. On 26th February, 2001 warrants of attachment were directed to be issued of the property of the judgment debtor. Decree holder filed a list of the movable property of the judgment debtor, namely, fruit lovely 25 grams (288 pieces) one case, pepsodent tooth paste 200 grams (72 pieces) one case and Tajmehal tea 250 grams, 48 kg. (192 pieces). The address from where property of the judgment debtor was to be attached was given : "Parkash Industries, C&F Agent of Hindustan Lever Limited, Plot No. 11, Sector 2, Kasauli Road, Parwanoo, District Solan, H.P." The warrants of attachment were sent to the learned Senior Sub-Judge, Solan by the learned executing court. Warrants were executed by the Bailiff of the Court of the learned Senior Sub Judge, Solan. The goods as mentioned in the list and found on the address given by the decree holder were attached. It also transpires that the goods so attached were handed over to Prem Chand, Proprietor M/s. Parkash Industries, Parwanoo as "Supurdari". 3. In the meanwhile, an application was moved by the applicant Parkash Industries, Plot No. 11, Sector 2, Parwanoo, District Solan, under Section 151 of the Code of Civil Procedure, for staying the operation of the warrants of attachment. It was stated in the application that the applicant Parkash Industries was stranger to the suit as also the execution. 3. In the meanwhile, an application was moved by the applicant Parkash Industries, Plot No. 11, Sector 2, Parwanoo, District Solan, under Section 151 of the Code of Civil Procedure, for staying the operation of the warrants of attachment. It was stated in the application that the applicant Parkash Industries was stranger to the suit as also the execution. The execution was taken out against the judgment debtor "M/s. Hindustan Lever Limited", the applicant was only C&F (Clearing and Forwarding) Agent of M/s. Hindustan Lever Limited, Block No. B, Plot No. A, South City A, Delhi Jaipur Highway Gurgaon (Haryana), whereas the correct address of M/ s. Hindustan Lever Limited was "M/s. Hindustan Lever Limited, House No. 165-166, Backbay, Reclamation, Mumbai, Maharashtra", therefore, the warrants of attachment should have been directed against the Bombay Office or against the "M/s Hindustan Lever Limited, Block No. B, Plot No. A, South City A, Delhi Jaipur Highway Gurgaon (Haryana)". It was further stated that the applicant has no concern whatsoever with the suit or the execution and the warrants of attachment issued by the executing court were illegal. It was prayed that such warrants be re-called. 4. The learned executing court vide its impugned orders took a view that the decree was not executable against the applicant, Prakash Industries, Parwanoo, as there was nothing on the record to show that "applicant is holding properties on behalf of judgment debtor. Though it is admitted by the applicant that he is agent of the judgment debtor, but it is not clear that whether he is holding properties of the judgment debtor or he is agent of the goods of the judgment debtor on payment basis". The executing court held that it was not proper to attach the properties of the applicant Parkash Industries as the decree was not directed against this firm. The Court directed for recalling of the warrants without execution. This order was made on 30th August, 2001. By that time the warrants, as noticed earlier, had already been executed. 5. Dis-satisfied with the oiders, the decree holder is in this Revision Petition. 6. 1 have heard Mr. K.D. Sood, learned Counsel for the petitioner and Mr. Bhupender Gupta, learned Senior Counsel assisted by Mr. Neeraj Gupta, Advocate, for the respondent. 7. It is admitted position that the goods, which were attached, were not in possession of the judgment debtor. 5. Dis-satisfied with the oiders, the decree holder is in this Revision Petition. 6. 1 have heard Mr. K.D. Sood, learned Counsel for the petitioner and Mr. Bhupender Gupta, learned Senior Counsel assisted by Mr. Neeraj Gupta, Advocate, for the respondent. 7. It is admitted position that the goods, which were attached, were not in possession of the judgment debtor. Though, according to the learned Counsel for the petitioner-decree holder, the goods so attached were the property of the judgment debtor which is disputed by the learned Senior Counsel for the respondent. 8. It is to be noticed that in the objection petition, it is stated that goods did not belong to the judgment debtor M/s. Hindustan Lever Limited and that the applicant was merely a Clearing and Forwarding Agent of M/s. Hindustan Lever Limited and therefore, warrants should have been directed either to its Mumbai Office or office in the South City at Delhi. The question raised before the learned executing court was, whether the goods, sought to be attached, were the property of the judgment debtor or not and this question ought to have been looked into by it. 9. This apart the goods in the hands of the applicant could not have been attached, even if, these belonged to the judgment debtor. The only course open to the executing court was to proceed under Order 21 Rule 46 of the Code of Civil Procedure which provides for the attachment of the debts, share and other property which is not in possession of judgment debtor. Rule 46 of Order 21 reads: "(1) In the case— (a) a debt not secured by a negotiable instrument, (b) a share in the capital of a corporation, (c) other moveable property not in the possession of the judgment-debtor, except property deposited in, or in the custody of any court, the attachment shall be made by a written order prohibiting— (1) in the case of the debt, the creditor from recovering the debt and the debtor from making payment thereof until the further order of the Court; (ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon; (iii) in the case of the other moveable property except as aforesaid, the person in possession of the same from giving it over to the judgment debtor. (2) A copy of such order shall be affixed on some conspicuous part of the court-house, and another copy shall be sent in the case of the debt, to the debtor, in the case of the share, to the proper officer of the corporation, and, in the case of the other moveable property (except as aforesaid), to the person in possession of the same. (3) A debtor prohibited under Clause (i) of sub-rule (1) may pay the amount of his debt into Court, and such payment shall discharge him as effectually as payment to the party entitled to receive the same." 10. A bare perusal of Rule 46 of Order 21 shows that in case of movable property, other than a debt or a share, the attachment shall be made by written order prohibiting the person in possession of the property from giving it to judgment debtor. The Rule does not justify the attachment of the property of the judgment debtor, in hands of third person, by actually seizing the goods. The proper course is to issue prohibitory orders as contemplated under sub-rule (I) (c) (iii) of Rule 46 of Order 21. After attachment is made in the manner provided under Rule 46, the next step which the Court is to take is to sell the property attached after hearing the objection of the person on whom prohibitory order has been served and thereafter to proceed in accordance with law as contemplated under Rule 79(2) of Order 21. 11. It appears, the order recalling the warrants of attachment was passed in ignorance of the fact that the property subject matter of dispute had already been attached and taken possession of, pursuant to the warrants of attachment. The impugned order, therefore, was non est. 12. For the reason^ recorded above the impugned order dated 30th August, 2001 is set aside. It is directed that the property attached, pursuant to the warrants issued by the executing court, by the Bailiff of learned Senior Sub judge, Solan, on 18th August, 2001 and given in "Supurdari" to Prem Chand, the applicant-objector and proprietor of the respondent M/s. Parkash Industries, shall be deemed to be in his possession under Order 21 Rule 46 of the Code of Civil Procedure. He is prohibited to give this property to the judgment debtor or otherwise dispose it of. 13. He is prohibited to give this property to the judgment debtor or otherwise dispose it of. 13. The executing court shall decide about the question of ownership of the property under attachment with the applicant after framing appropriate issues and giving parties opportunity to lead evidence. The executing court, thereafter, shall proceed to decide the execution application in accordance with law. 14. There will be no order as to costs. 15. The parties are directed to appear before the executing court on 26th August, 2002. Revision petition disposed of. -