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1952 Supreme(Nagpur) 101
HIGH COURT OF NAGPUR
Sinha, Mudholkar
J H SUBHIAH – Appellant
Versus
GOVINDRAO BHIWAJI AND ORS – Respondent
Miscellaneous First Appeal No. 31 of 1949
Decided on : 15-09-1952
G N Hastak, K G Chendke, M Adhikari, Advocates
Machinery attached to land may be considered movable property if it is not permanently attached to the land and the owner of the machinery did not intend it to form part of the immovable property.
Headnote:
IMMOVABLE PROPERTY - ATTACHMENT AND SALE - MACHINERY ATTACHED TO LAND - DEGREE OF ANNEXATION AND OBJECT OF ANNEXATION - TESTS - MACHINERY PURCHASED BY JUDGMENT-DEBTOR FROM DECREE-HOLDERS - MACHINERY NOT INTENDED TO FORM PART OF IMMOVABLE PROPERTY - SALE OF MACHINERY AS MOVABLE PROPERTY - NO IRREGULARITY OR ILLEGALITY.
Fact of the Case:
The judgment-debtor challenged the sale of certain machinery attached and sold as movable property by the decree-holders, contending that the machinery was immovable property and should have been sold as such. The machinery was located on nazul land belonging to the decree-holders and had been purchased by the judgment-debtor from the decree-holders in 1943.
Finding of the Court:
The court held that the machinery was movable property and that the sale was not vitiated by any irregularity or illegality. The court applied the tests of the degree of annexation and the object of annexation to determine whether the machinery was immovable property. The court found that the machinery was not permanently attached to the land and that the judgment-debtor did not intend it to form part of the immovable property.
Issues: 1. Whether the machinery was immovable property. 2. Whether the sale of the machinery as movable property was irregular or illegal.
Ratio Decidendi: 1. The court held that the machinery was movable property because: a) The machinery was not permanently attached to the land. b) The judgment-debtor did not intend the machinery to form part of the immovable property. c) The machinery was purchased by the judgment-debtor from the decree-holders in 1943, and the parties treated the transaction as one relating to movable property. 2. The court held that the sale of the machinery as movable property was not irregular or illegal because: a) The decree-holders had made it clear during the execution proceedings that the machinery had to be sold as detached from the land. b) The decree-holders took the precaution of safeguarding their interest in the immovable property, viz., to the nazul land on which the machinery stood.
Final Decision: The court dismissed the judgment-debtor's appeal and upheld the sale of the machinery as movable property.
1. This is a judgment-debtors' appeal from the decision of the learned Civil Judge, Class I, of Chanda dated 9-12-1948 dismissing his objection under Section 47, Code of Civil Procedure.
2. It appears that the Respondents had obtained a decree for Rs. 9,000-0-0 odd against the Appellant on 21-10-1947. In execution of that decree they attached the judgment-debtor's property, viz., timber saw mill including band saw, circular saw, engine boilers, and other accessories kept on the nazul land Halka No. 10, Tahsil Chanda at Ballarpur, said to belong to the decree-holders themselves. Hence it is stated in the petition of execution that the attached properties do not include the structure and the land which belong to the decree-holders themselves. The attachment was effected as in respect of movable properties.
3. On 16-4-1948 after the attachment had been effected the judgment-debtor made an application to the executing Court for postponement of the sale on certain grounds not material to the controversies raised in the present appeal. Subsequently, on 24-4-1948 the judgment-debtor made an application admitting the attachment of the properties but contending that though the decree-holders had described those properties as movable, in fact the engine and other machinery were attached to the earth and were therefore immovable property. Hence it was further contended that the properties could be sold as immovable properties and their attachment and proposed sale as movables would be irregularities amounting to illegalities. It was also stated that the properties attached were worth about Rs. 40,000-0-0 and the statement of the value by the decree-holders as Rs. 10,000-0-0 odd was a gross understatement. The property was sold ultimately on 25-6-1948 for Rs. 11,100-0-0 and was purchased by the decree-holders themselves. On 30-6-1948 the judgment-debtor made an application under Section 47, Code of Civil Procedure, attacking the sale on various grounds, but it is only necessary to take notice of the principal ground of attack, viz., that the bulk of the property sold was immovable, that its real value was Rs. 40,000-0-0, and that the sale was null and void on that ground.
4. The judgment-debtor examined a number of witnesses in support of his contentions. The witnesses examined on his behalf have stated that the value of the property sold would be Rs. 30,000-0-0 to. Rs. 40,000/0/0, that the wheels of the engine of the mill were 'fixed in the ground', and that the band saw and circular saw and shaft were also 'studded in the ground with cement.' In cross-examination the first witness for the judgment-debtor has admitted that the boiler, bands, wheels, and everything could be taken out, and that those things were fixed in the ground for working purposes. Witness No. 4 for the judgment-debtor also admitted in cross-examination that once the boiler of the mill had been removed to another village.
5. In the evidence on behalf of the decree-holders it was stated that the mill had been purchased in 1928-29 for Rs. 13,000-0-0 and that the same was sold for Rs. 30,000-0-0 to the judgment-debtor in 1943 in a working condition along with stores and accessories worth about Rs. 15,000-0-0. It was also stated that the boiler was then (at the time of the evidence) in a damaged condition. At the request of the judgment-debtor the Court made a local inspection and recorded a note of that inspection on 17-10-1948. The material portion of the note is in these terms: The boiler attached in this case has four wheels,. These wheels are not actually embedded in the earth but some earth has been raised: over the wheels with the object that wheels may not move. There is not a masonry foundation for the working of the shaft. The various saws were not to be seen but the places where they were fixed were shown to me.
6. On hearing the evidence of the parties the Court below has held that the properties attached and sold had been rightly treated as movable propert
