1979 Supreme(MP) 425

IN THE HIGH COURT OF MADHYA PRADESH
P.D. Mulye, J.
Central Bank of India – Appellant
Vs.
Ayoob Khan – Respondent
Cr. Revn. No. 732 of 1977 (I)
Decided On : 26-11-1979

Headnote:Civil Procedure Code, 1908 - O. 21, R.58 - objection under - based on hypothecation - whether may be inquired into on meris.

       Short Note

       1. The short facts giving rise to this petition are that non - applicant No. 1 Ayoob Khan filed an execution for the recovery of money decree against non - applicant No. 2 and others. In the said execution non - applicant No.1 got engine No. 10 - 1001 - 27291 - 5 HP, Kirloskar AVI, attached for recovery of the decretal amount. The applicant moved an application challenging the attachment on the ground that the same was hypothecated to the applicant Bank by non - applicant No.2 by written document by way of security for the repayment of the loan advanced to it. It, therefore, prayed that the engine was not liable to be attached and sold in execution. It also filed an the necessary documents in connection with the loan including the hypothecation agreement. However, the learned Executing Court without any enquiry disallowed the prayer of the applicant and refused to release the said engine from attachment. Hence this revision.

       2. Held: After going through the record, this Court finds that the submission of the learned counsel for the applicant must be upheld. When the applicant raised an objection on the basis of hypothecation for which it had submitted the necessary documents, the learned Executing Court ought to have made an enquiry before passing the order The legal position of hypothecation in such cases has been very well settled by serveral decisions, including the one reported in 1977 JLJ 839, (Bank of India v. M/s. Binod Steel Limited and another). It was, therefore, necessary for the Executing Court to consider these objections and then only pass an appropriate order. He having not done so, it being an illegality this revision deserves to be allowed. as in absence of any enquiry the applicant is bound to suffer an it reparable injury in case the engine attached is permitted to be sold by public auction. 1977 JLJ 839, relied on. Revision allowed.