JUDGMENT
Sinha, J.
1. I shall deal with these civil revisions separately.
2. Civil Revn. No. 330 has been filed by the judgment-debtor, the Hindustan Bicycle Manufacturing and Industrial Corporation Limited (which will hereafter be referred to as the Corporation) against which the opposite party, the Nath Bank Limited, had obtained a decree for a sum of rupees one lac, thirty thousand and odd in the original side of the Calcutta High Court on the 27th of March, 1953. On the 8th of October, 1953, a precept under Section 46 of the Code of Civil Procedure was issued by the Calcutta High Court and sent to the District Judge, Patna, to attach the properties mentioned in the schedule of the precept.
In pursuance of the said precept, the learned District Judge, Patna, on the 16th of November, 1953, ordered attachment of the properties specified in the precept. On the 19th of November, 1853, the immoveable properties and on the 17th of December, 1953, the movable properties were attached. It appears, upon a request made by the petitioner, namely, the Corporation, that, even after the attachment, they should be allowed to work the factory, the learned District Judge, by his order dated the 5th of January, 1954, directed the factory to be worked provided security was furnished to the extent of seventy-five thousand rupees by the 1st of March, 1954.
In the meantime, it appears, the attachment under the precept was extended up to the 8th of February, 1954, and on the 19th of January, 1954, the decree was transferred to the Patna Court, and a petition for execution, registered as Execution Case No. 3 of 1954, was filed on the 10th of February, 1954, 8th and 9th being public holidays. Thereafter, on the 16th of March, 1954, the learned Judge, after hearing the parties directed that the factory should furnish security of rupees one lac by the 16th of April, 1954, and further that, until the security was furnished, the peons who were guarding the property in the building of the said company should remain on duty until further orders. The Corpora
tion has come up in revision challenging the jurisdic
tion of the Court to ask for security from the Corpo
ration.
3. It is contended by Mr. Tarkeshwar Nath learned counsel appearing for the Corporation, that the order is wholly without jurisdiction as there is no provision anywhere in the law for demand of security from a judgment-debtor. It is submitted that the properties were attached, and if the properties were attached, no law permitted demand of security from the judgment-debtor whose properties were under attachment of the Court. In my opinion, the submission made must be repelled.
When the properties were attached, the properties came in the custody of the Court, and the judgment-debtor had nothing to do with those properties until the attachment subsisted. The movable properties which were attached could have been removed to the Court premises and put under lock and key. Order XXI, Rules 43 and 43-A of the Code of Civil Procedure, as amended by this Court, read as follows:–
“43. Where the property to be attached is, movable property other than agricultural produce, in the possession of the judgment-debtor, the attachment shall be made by actual seizure, and the attaching officer shall be responsible for the due custody thereof:
Provided that, when the property seized is subject to speedy and natural decay, or when the expense of keeping it in custody is likely to exceed its value, the attaching officer may sell it at once.”
“43-A. (1) The attaching officer shall/in suitable cases, keep the attached property in the village or locality either:–
(a) in his own custody in any suitable place provided by the judgment-debtor, or in his absence by any adult member of his family who is present on his own premises or elsewhere;
(b) in the case of livestock, and provided the decree-holder furnishes the necessary funds, in the local pound, if a pound has been established in or near the village, in which case the pound-keeper will be responsible for the property to the attaching officer, and shall receive the same rates for accommodation and maintenance thereof as are paid in respect of impounded cattle of the same description, or such less rate as may be agreed upon;
(c) in the custody of a respectable surety, provided the decree-holder furnishes the cost of maintenance and other costs, if any.
4. From a perusal of these two rules of Order XXI, it is apparent that the attachment of movable property has to be made by actual seizure and that the attaching officer has to be responsible for the due custody of those properties. The property attached may be kept in the custody of the attaching officer in any suitable place, or it may be put in custody of any respectable surety. These rules, therefore, leave no room for doubt that, after the movable properties were attached, the judgment-debtor was not entitled to the use of those properties. It appears, however, that the Corporation itself asked for working the factory, and the Court granted that request on furnishing security which was at first fixed at rupees seventy-five thousand.
It appears from the latter part of the order of the 16th of March, 1954, that some kind of obstructions was offered and the help of the District Magistrate had to be taken by the Nazir of the Court; and in view of these facts, tile Court below increased the amount of security from rupees seventy-five thousand to one lac. In my opinion, therefore, the Court below was entitled to put the judgment-debtor, the Corporation, on terms, if the judgment-debtor Wanted to work the factory. Therefore, the order complained against cannot possibly be interfered with by this Court in revision. The application, therefore, fails, and it is dismissed with costs. Hearing fee Rs. 50.
5. Civil Revision No. 455 has been preferred by the decree-holder, the Nath Bank Limited, and it is directed against the same order dated the 16th of March, 1954, in which the learned Judge had made the following observation:–
“In my opinion, it would be very dangerous to refuse the prayer for furnishing security as the order of attachment will no longer be in force in view of the fact that execution petition has been filed.”
I must confess that this order, which I have just quoted, did not appear to me at the first sight to be quite intelligible. After having heard the parties, I find that what the. learned Judge wanted to say was that the order of attachment as per precept, already referred to would not subsist in view of the fact that execution petition had been filed. Section 46 of the Code of Civil Procedure provides for attachment on receipt of a precept, and the proviso to that section proceeds as follows:–
“Provided that no attachment under a precept shall continue for more than two months unless the period of attachment is extended by an order of the Court which passed the decree or unless before the determination of such attachment the decree has been transferred to the Court by which the attachment has been made and the decree-holder has applied for an order for the sale of such property.”
In other words, this proviso lays down that an attachment made under a precept shall continue only for two months, but it could be extended only in two ways and in no other — (1) it could be extended by an order of the Court which passed the decree; and (2) it could also be extended if before the determination of such attachment, that is, before the expiry of two months from the date of attachment, the decree has been transferred to the Court by which the attachment had been made and the decree-holder had applied for an order for the sale of such property.
In the present case, as I shall presently consider, both these contingencies have been brought into existence; the period of attachment was extended by the Court which passed the decree, and it is admitted in this case that it was extended up to the 8th of February, 1954, and the decree was transferred to the Patna Court on the 19th of January, 1954 and the execution petition itself was filed in the Patna Court on 10-2-1954. It was submitted by Mr. Tarkeshwar Nath that the transference of the decree to the Patna Court and the filing of the execution petition in that Court was beyond two months from the date of the attachment. I think, this is not correct.
The movable properties were attached on the 17th of December, 1953, and the immovable properties were attached on the 19th of November, 1953, that is, just within two months from the date of the attachment of the immovable properties and much more than within two “months from the date of the attachment of the movables, and the petition for execution was filed on the 10th of February, 1954, which would be much within two months of the extended period of attachment, which I have already indicated, namely, the 8th of February, 1954. In this view of the matter, in my opinion if the learned Judge in the Court below wanted to convey that the attachment had ceased to exist, he was not correct.
6. Mr. Tarkeshwar Nath also raised the question whether a fresh attachment was needed after the execution petition was filed. It was submitted by him that, though the execution petition was filed within the subsistence of the attachment under the precept, steps for fresh attachment had to be taken in the execution proceedings. I think, the section itself is quite clear. According to the proviso to Section 46 of the Code, attachment is extended if before its determination the decree is transferred to the Court which attached the property on precept and the decree-holder made an application for an order for sale of the property.
In the present case, I have held that the decree-
holder did apply for an order for sale by filing an
application for execution and that was during the
subsistence of the attachment as extended by the
order of the Court which passed the decree. Mr. Tarkeshwar Nath referred us to a case reported as Ramachandrudu v. Sait Bakraj Gulabchand Firm, AIR
1952 Mad 826 (A). In my opinion, however, that
is not an authority in support of the submission
made by Mr. Tarkeshwar Nath.
7. In the result, the application is allowed, but without costs, and the order of the Court below to the effect that the attachment had Ceased to exist on the filing of the application for execution is set aside.
Dayal, J.
8 . I agree.