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1953 Supreme(Bom) 151
IN THE HIGH COURT OF BOMBAY
Chagla, C.J. and Dixit Y.V. , J.
Appellants: Mahadev Vasudeo
Vs.
Respondent: Janaksingh Saigal
O.C.J. Appeal No. 66 of 1953
Decided On: 14.10.1953
Counsels:
For Appellant/Petitioner/Plaintiff: M.P. Laud, Adv.
For Respondents/Defendant: K.T. Desai and G.K. Munshi, Advs.
An order passed by a court under Order XXXVIII, Rule 5 of the Civil Procedure Code, which does not provide for furnishing of security or showing cause why security should not be furnished, and which contemplates a conditional attachment pending the disposal of the plaintiff's application, does not constitute an order under Order XXI, Rule 53 (1) (a) of the Civil Procedure Code and therefore does not operate as a stay of execution of a decree.
Headnote:
INSOLVENCY - STAY OF EXECUTION - ATTACHMENT BEFORE JUDGMENT - ORDER XXI, RULE 53 (1) (A) - ORDER XXXVIII, RULES 5, 6 AND 7 - EFFECT OF ORDER - INCHOATE ATTACHMENT - STAY OF EXECUTION - RESIDENCE WITHIN ONE YEAR - INSOLVENCY ACT.
Fact of the Case:
The appellant, Mahadeo Vasudeo Joshi, appealed against the dismissal of his notice of motion to set aside an insolvency notice issued by the respondent, Janak-singh Saigal. The insolvency notice demanded payment of Rs. 35,000, the balance of a decree obtained by the respondent against the appellant in suit No. 842 of 1952 filed in the High Court of Calcutta. The appellant claimed that the execution of the decree had been stayed and that he did not reside or carry on business within one year from the date of the insolvency notice as required by the Insolvency Act.
Finding of the Court:
The court found that the order passed by the Calcutta High Court on June 19, 1952, did not constitute an order under Order XXI, Rule 53 (1) (a) of the Civil Procedure Code and therefore did not operate as a stay of execution of the decree in suit No. 842 of 1952. The court also found that the appellant may have resided in Bombay during the material period and therefore dismissed the appeal.
Issues: 1. Whether the order passed by the Calcutta High Court on June 19, 1952, operated as a stay of execution of the decree in suit No. 842 of 1952? 2. Whether the appellant resided or carried on business within one year from the date of the insolvency notice as required by the Insolvency Act?
Ratio Decidendi: 1. The court held that the order passed by the Calcutta High Court did not constitute an order under Order XXI, Rule 53 (1) (a) of the Civil Procedure Code because it did not provide for furnishing of security or showing cause why security should not be furnished as required by Rule 5 of Order XXXVIII. The court also held that the order did not contemplate that it would operate as an attachment itself, but rather as a conditional attachment pending the disposal of the plaintiff's application under Rule 5 of Order XXXVIII. 2. The court did not decide the issue of whether the appellant resided or carried on business within one year from the date of the insolvency notice as required by the Insolvency Act, as the appellant did not press the point.
Final Decision: The court dismissed the appeal with costs and allowed the respondent's attorneys to withdraw the sum of Rs. 500 deposited in Court.
1. This is an appeal from a judgment of Mr. Justice Coyajee by which he dismissed a notice of motion to set aside an insolvency notice dated December 19, 1952. The insolvency notice callea upon the appellant to pay a sum of Rs. 35,000, being the balance of the amount due under a decree obtained by the respondent against the appellant in suit No. 842 of 1952 filed in the High Court of Calcutta. The insolvency notice was sought to be set aside on two grounds. The first ground was that the execution of this decree had been stayed, and the other ground was that the appellant did not reside or carry on business within one year from the date of the insolvency notice as required by the Insolvency Act.
2. Turning to the first point, suit No. 842 of 1952 was a suit for dissolution of partnership and accounts and it was filed on March 4, 1952. The decree in this suit was passed on March 31, 1952. Under this decree the appellant became liable to pay Rs. 50,000 by certain instalments. Another suit was filed by one Joharmal Bose against the respondent, the appellant and others, being suit No. 2386 of 1952. The claim in this suit was Rs. 8,000. Joharmal applied for an attachment before judgment on the day on which the suit was filed, via. June 19, 1952, and what he sought to attach was the decree in suit No. 842 of 1952. An order was passed by the High Court of Calcutta on that application on June 19, 1952, and the contention of the appellant is that it is this order which operates as a stay of the decree in suit No. 342 of 1952.
It is urged by Mr. Laud on behalf of the appellant that the order passed by the High Court on 19-6-52, operates as an attachment the effect of the attachment is to prevent the respondent from executing his decree in suit No. 842 of 1952. On the other hand, it is contended by Mr. K. T. Desai on behalf of the respondent that although the High Court might have passed an order on June 19, 1952, no attachment was levied pursuant to that order and a distinction has got to be made in law between an order of attachment and the attachment levied pursuant to that order; and it is further urged that it is only when the order is effectuated by an attachment being levied pursuant to that order that it could be said that the attachment is complete and the consequences of the attachment would follow.
For this purpose Mr. Desai relies on a decision of the Privy Council in -- Muthiah Chetti v. Palaniappa Chetti, AIR 1928 PC 139 (A). That was a case where the Privy Council was considering the provisions of Order XXI, Rule 54, and the Privy Council considered the scheme of the Civil Procedure Code with regard to attachments, and: their Lordships point out that the order passed by the High Court is one thing and attachment is another, and the real thing is not the order but the attachment. They also point out that the provisions of the Code of Civil Procedure make it amply clear that the Legislature intended to. prevent a mere order of a Court from effecting attachment, and plainly indicating that the attachment itself is something separate from the mere order and is something which is to be done and effected before attachment can be declared to have been accomplished, and their Lordships considered the provisions with regard to attachment of shares of moveables, shares of salary, and. attachment of partnership property.
It is rather significant that their Lordships did. not expressly consider the provisions with regard to attachment of a decree, but they do point out at p. 142 that no property can be declared to be attached unless first the order for attachment has been issued, and, secondly, in execution of that order the other things prescribed by the rules in the Code have been done. Therefore, it is clear that we must look to the Code itself in order to find out what are the things prescribed by the Code which have got to be done in order that the attachment should be effective.
3. Turning to Order XXI, R
