TMI Blog1946 (9) TMI 7X X X X Extracts X X X X X X X X Extracts X X X X ..... ty in the name of Narendra Prasad in order to take settlement of the Akhra Ghat within the jurisdiction of the Municipality. It was claimed by Narendra Prasad and Nagendra Narain that each of them had a half share in the said ₹ 17833 although the entire deposit was made in the name of Narendra Prasad. Settlement of Akhra Ghat was, however, not made with Narendra Prasad or with Nagendra Narain. An application was made to the Municipality for refund of the said deposit and a cheque for the same amount was issued to Narendra Prasad on 9th January 1945. Payment, however, was withheld by the Chairman of the Muzaffarpur Municipality on receipt of an attachment order from the Court of the Additional Subordinate Judge on 10th January 1945. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... applicable was Rule 46 of Order 21. He, however, urged that even this rule would not be applicable as the handing; over of the cheque by the Chairman of the Municipality to Narendra Prasad, who had given a receipt for it, was a discharge of the debt and accordingly at the, time the Municipality was no longer a debtor and there was no debt capable of attachment. Mr. Jaleshwar Prasad appearing for Nagendra Narain further urged that even if at the time there was a debt owing by the Municipality to Narendra Prasad, the proper mode for attachment was by actual seizure of the cheque under Order 21, Rule 61 as the cheque was a negotiable instrument. Rule 46 was not applicable as the debt was secured by a negotiable instrument, whereas Rule 46 is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he property to be attached. Where it is moveable property it is to be attachment by 'actual seizure'; where it is agricultural produce the attachment is to be made by affixing a copy of the warrant-on the land where there is a growing crop, and on the threshing floor, and other places where produce has been cut and gathered. In the case of an attachment of a debt, there is to be a written order prohibiting the creditor from recovery, and the debtor from making payment, and prohibiting the handing over of the property by anyone in whose name it stands, and this order is to be affixed publicly to the court-house. There are other provisions as to the attachment of shares of movables, even shares of salary, and as to attachment of partn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted in Rule 46 had never been observed. Consequently, there was no valid attachment. It follows therefore that the appeal must be allowed and the order of the Additional Subordinate Judge set aside. It follows also that the civil revision presented by Nagendra Narain must be allowed, there being no valid attachment. The entire order of the Additional Subordinate Judge is, therefore, set aside. I think the appellant and the petitioner are entitled to costs throughout. In the case of the civil revision, the costs in this Court are assessed at one gold mohur. C.H.A. Bennett, J. 7. It is only with reluctance that I agree with the order proposed by my learned brother because I feel that the essence of a good attachment of a debt, namely, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ements should be mandatory. Similar considerations apply to Sub-rule (2) of Rule 46 which provides that a copy of the order shall be affixed on some conspicuous part of the courthouse, and another copy shall be sent to the debtor. Here again, both the requirements are in one sentence with nothing to distinguish them, and the latter requirement, that a copy shall be sent to the debtor, is clearly mandatory. Secondly, because as my learned brother has pointed out, their Lordships of the Privy Council in Muthiah Chetty v. Palaniappa Chetty. A.I.R. 1928 P.C. 139 have used general language which, unless this case can properly be distinguished, clearly indicates that all the requirements of B. 41 to 34 of Order 21 are mandatory. Having regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X
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