Where movable property sought to be attached is in the possession of the judgment-debtor, the executing court cannot insist on a list of such property from the decree-holder as a condition for issuing a writ of attachment.

JUDGMENT :

Narasimham, J. - The simple question for consideration is whether the decree-holder should give a list of the movable properties of the judgment-debtor that are in his possession so as to enable the executing Court to specify the various items of movable properties while issuing a writ of attachment under Order 21, Rule 43 Code of Civil Procedure. The Registrar seems to have relied on Form No. 8 described in Appendix E to Schedule I of the CPC which is as follows:

To

The Bailiff of the Court

Whereas was ordered by decree of this Court passed on the day of 19, in suit No. of 19 to pay to the Plaintiff the sum of Rs. as noted in the margin; and whereas the said sum of Rs. has not been paid. These are to command you to attach the movable property of the said as set forth in the schedule hereunto annexed or which shall be pointed out to you by the said and unless the said shall pay to you the said sum of Rs. together with Rs. the cost of this attachment, to hold the same until further orders from this Court.

You are further commanded to return this warrant on or before the day of 19 with an endorsement certifying the day on which and manner in which it has been executed", why it has not been executed.

Doubtless it is desirable to give a list of the movables of the judgment-debtor in his possession if the decree-holder could furnish correct information on the subject. But too much reliance should not be placed on Form No. 8 inasmuch as that is a general form dealing with warrants of attachment of movable property under Order 21, Rule 30 Code of Civil Procedure. The other provisions of Order 21 Code of Civil Procedure. should also be looked into in this connection. The question in the end is whether an executing Court can insist as a matter of law that the decree-holder must give a list of the movables in the possession of the judgment-debtor for the purpose of attachment.

2. Order 21, Rule 11(2) gives a full description of the particulars which should be mentioned in an application for execution. Clause (j) of that sub-rule says that the application for execution shall contain in a tabular form particulars regarding the mode in which the assistance of the court is required that is to say, whether by attachment and sale or by sale without attachment of any property. That rule does not, in express terms, say that where execution is sought for by attachment and sale of the movable property in the possession of the judgment-debtor, a list of such property should be furnished. On the other hand, Rule 12 of Order 21 expressly says that where an application is made for the attachment of any movable property of the judgment-debtor not in his possession an inventory of the property to be attached containing a reasonably accurate description of the same must be furnished. The obvious inference is that where the movable property that is sought to be attached is in the possession of the judgment-debtor no such list is required by law. This was the view taken by the Calcutta High Court in Municipal Commissioners Vs. Shaikh Mosafir, and also by the Nagpur High Court in Nathmal v. Balkrishna AIR 1941 Nag. 152.

3. It was, however, urged by Mr. A. Das for the judgment-debtor that the only implication arising out of Order 21, Rule 12 Code of Civil Procedure. was that where movable property was not in the possession of the judgment-debtor the inventory should contain a reasonably accurate description of the movable property whereas if the movable property is in the possession of the judgment-debtor the list need not contain such an accurate description of the movable property; but in any case there should be a list of the movable property that is sought to be attached. He has, however, not been able to cite any authority in support of this view. He cited Mt. Khodaijtul Kubra Vs. Ugrah Singh and Others, Vallabhdas v. Kantilal AIR 1947 Born. 430 and Bairanglal Poddar v. Sitaram Kedia AIR 1949 Cal. 457. These are clearly distinguishable. The first tw