1992 Supreme(All) 851

IN THE HIGH COURT OF ALLAHABAD
N.L. Ganguly, B.L. Yadav, JJ.
K.A. Alwa - Appellant
Vs.
Jagannath Prasad Varshney And Others - Respondents
First Appeal No. 52 of 1985
Decided On : 07-05-1992

Interpretation of Section 145 as amended by the State of Uttar Pradesh and Order 21 Rule 43 and 43-A of the Code of Civil Procedure, 1908.

Headnote:

CUSTODIAN - RESTORATION OF PROPERTY - ATTACHMENT BEFORE JUDGMENT - WITHDRAWAL OF SUIT - LIMITATION - RES JUDICATA - ORDER 21 RULE 43-A OF THE CODE OF CIVIL PROCEDURE, 1908 - INTERPRETATION.

Fact of the Case:

Plaintiff-respondents 1 to 3 filed a suit under Section 20 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. 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 Vijaya Bank, were given in his custody on 30-12-78. The suit was withdrawn by the Plaintiff respondent Nos. 1 to 3 on 28-2-79.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.

Finding of the Court:

1. The suit filed by Plaintiff-respondents 1 to 3, in which order of attachment was passed and Sri K.A. Aiwa was appointed as Supurdgar, was withdrawn on 28-2-79, hence after withdrawal of the suit there remains no decree in favour of Plaintiff-Respondents 1 to 3. 2. 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. 3. 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 operate as res judicata, as that judgment and decree became final 4. 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.

Issues: 1. 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? 2. 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? 3. Whether the first and second word 'or' used in Sub-rule (I) of Rule 43-A of Order 21 was disjunctive or conjunctive? 4. Whether the application filed by Plaintiff Respondents 1 to 3 was barred by limitation? 5. 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.

Ratio Decidendi: 1. The word 'or' used in Sub-rule (2) of Rule 43-A of Order 21 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. 2. 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. 3. The attachment before judgment stood withdrawn when the suit was dismissed in default. But the attachment does not revive merely because the suit has been restored. 4. Article 136 of the Limitation Act, 1963 would not apply as there was no decree, judgment or order in favour of Plaintiff Respondents 1 to 3. 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.

Final Decision: The 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.