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2009 DIGILAW 514 (AP)

Gathula Krishna v. Soorampudi Satyanarayana

2009-07-30

L.NARASIMHA REDDY

body2009
Judgment :- The petitioner filed O.S.No. 1142 of 2000 in the Court of I Additional Junior Civil Judge, Kakinada, against the respondent for recovery of certain amount. He obtained attachment before judgment, under Order 38 Rule 5 C.P.C. against a vehicle bearing No.AIP-774. The suit was decreed, and after the decree became final, he filed E.P.No.603 of 2003, for enforcement of the same. On the basis of a warrant issued by the Executing Court, the Amin sought to attach the vehicle. However, it was found to be in possession of one Mr.Shaik Bajani. He is said to have raised an objection, stating that he purchased the vehicle from M/s Padma Finance Company, Kakinada, and that he was also issued R.C. Book, by the authorities of the Transport Department. The petitioner filed E.A.No.3050 of 2003, with a prayer to re-entrust the warrant to Amin, to attach the schedule property. Through its order dated 08-12-2003, the Executing Court dismissed the E.A. Hence, this revision. Sri E.V.V.S. Ravi Kumar, learned counsel for the petitioner submits that, once the vehicle was attached, before judgment, it was not only competent, but obligatory on the part of the Executing Court to ensure that it is proceeded against, by way of sale. He contends that if any third party claims interest in the vehicle, the only course open to him, is, to file application under the relevant Rule of Order 21 C.P.C., and the execution proceedings cannot be nullified, on account of resistance offered by third party. The petitioner got attached an item of immovable property, namely, a jeep, bearing No.AIP-774, before the judgment. Since the suit is decreed, the attachment would hold good for the execution proceedings also. C.P.C. maintains a clear distinction between attachment of movable properties, on the one hand, and immovable properties, on the other hand. Rule 43 of Order 21 prescribes the procedure to be followed, in respect of movable properties, other than agricultural produce, with the possession of the judgment-debtor. C.P.C. maintains a clear distinction between attachment of movable properties, on the one hand, and immovable properties, on the other hand. Rule 43 of Order 21 prescribes the procedure to be followed, in respect of movable properties, other than agricultural produce, with the possession of the judgment-debtor. It reads as under: “O.21 R.43: Attachment of movable property other than agricultural produce in possession of judgment-debtor.- 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 his subordinates, and shall be responsible for the due custody thereof: Provided that, when the properly 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”. The provision is clear in its purport, to the effect that on being attached an item of movable property, shall be in the ”. The provision is clear in its purport, to the effect that on being attached an item of movable property, shall be in the custody of the attaching officer, or in the custody of his subordinates. The mode of attachment of immovable properties, such as land and houses would be substantially different. Rule 54 deals with the same. The purport thereof is mainly to prevent the owner thereof, from transferring, or reaping benefit of any transfer or charge. The Rule reads: “o.21 Rule 54: Attachment of immovable property.- (1) Where the property is immovable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. (1A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for setting the terms of the proclamation of sale. (1A) The order shall also require the judgment-debtor to attend Court on a specified date to take notice of the date to be fixed for setting the terms of the proclamation of sale. (2) The order shall be proclaimed at same place on or adjacent to such property by beat of drum or other customary mode, and a copy of the order shall be affixed on a conspicuous part of the property and then upon a conspicuous part of the Court-house, and also, where the property is land paying revenue to the Government, in the office of the Collector of the district in which the land is situate and, where the property is land situate in a village, also in the office of the Gram Panchayat, if any, having jurisdiction over that village”. (3) From this, it becomes clear that an effective attachment of a movable property can be said to have taken place, only when the custody thereof is assumed by the attaching officer. If the properties are not capable of being taken possession of, an attachment, in its true sense; does not take place. The petitioner does not dispute that the vehicle against which, order of attachment was obtained, is not in the possession of the judgment-debtor, i.e. the respondent. There is nothing, that the Court can do about it. The adjudication of the ownership of the attached item of movable property, that too, when the person claiming it has not approached the Court, would be totally outside the scope of the execution proceedings. A perusal of the order under revision discloses that the registration certificate was also issued in the name of the person, who is in possession of the vehicle. Therefore, no relief can be granted to the petitioner. The C.R.P is accordingly dismissed. It is, however, left open to the petitioner to take such other courses of execution, as are open to him, in law, against the respondent. There shall be no order as to costs.