TMI Blog1931 (7) TMI 18X X X X Extracts X X X X X X X X Extracts X X X X ..... he responsibility of the attaching officer is concerned, I do not think that there is necessarily any inconsistency. Under Rule 43 he is responsible for the due custody thereof. It is his duty to make the most convenient and economical arrangement, but his legal responsibility will continue till the Court approves of the arrangement. When the Court has approved of it, his responsibility comes to an end; but pending approval it subsists. 3. Of course the expression subject to approval by the Court implies that the arrangements which are considered by him to be most convenient and economical must be made by him first and approved by the Court subsequently. It is not necessary for him to submit his proposal beforehand and get an approval though such a course is not impossible. The appointment of a custodian or supurddar and the placing of the attached property in his custody and the taking of a security from him are arrangements within the scope of Rule 122. But the appointment of a sahana (guard or watchman) putting him in special charge of a property is done under Rule 123 and must be with the permission of the Court. Ordinarily the difference between the approval and permissio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the warrant for attachment to the Court. This report purports to bear the signature of Nanhe Mal, where Nanhe Mal describes himself as ' nishan dahinda. 6. The report was received in the office of the executing Court, namely, the Subordinate Judge, Moradabad, prior to 3rd July 1929. On 3rd July, which had been fixed in the case, the following order was passed by the Subordinate Judge: Attachment has been effected according to law. Further (execution) costs have not been paid. It is ordered that the decree-holder should pay in further costs by 10th July 1929. 7. The execution was stayed by an order of the appellate Court, and an order to that effect was recorded by the Subordinate Judge on 7th August 1929. 8. On 17th February 1930 the decree-holder made an application to the executing Court to the effect that the appellate Court had dismissed the appeal, that the goods attached were with the judgment-debtor, that the sapurddar or custodian of the attached goods had died and that the goods should be recovered from the judgment-debtor. On this application being received, a notice was issued to Ram Gopal, judgment-debtor, to produce the goods on 11th March 1930. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on in this Court. This Court held that it was the commissioner, who effected the attachment, who was really responsible, and accordingly made a decree against him for the value of the goods attached. 14. The decision was based mainly on Rule 43 and Rule 123 (it was then numbered as 124), Order 21, Civil P.C. It may be mentioned here that Order 21, Schedule 2, Civil P.C., as originally passed by the legislature, contained 103 rules. Certain rules were added by the High Court at Allahabad, namely Rules 104 to 140. These rules have undergone a slight change, and therefore it was necessary to re-number them. 15. Rule 43 lays down that the attachment of movable property in the possession of the judgment-debtor shall be made by actual seizure, and directs the attaching officer to keep the property in his own custody or in the custody of his subordinates, and holds the attaching officer responsible for the due custody of the property. Rule 123, (Rule 124 old) says that, with the previous permission of the Court, the attaching officer may place. one or two persons in special charge of the attached property. It was held in the case of Badri Prasad that the commissioner (Mr. Mohammad I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... approved of the procedure adopted by the amin, as required by Rule 122. We must take it that the report of the amin was read by or was read out to the Court and the Court was satisfied with the custody of Brijnandan Prasad. Indeed, there was nothing to take exception to, as Brijnandan Prasad had been approved by Nanhe Mal as a proper custodian. The decree-holder himself must have at once come to know in whose custody the attached goods had been placed, and he never told the Court that the goods had been placed with a wrong man and that these should be recovered from him and kept in some other custody. 21. It appears to me that, in view of what had happened, the amin was exonerated of all liability and responsibility in respect of the goods. He was no doubt responsible under Rule 43; but as soon as he complied with Rule 122, his responsibility ceased. 22. It appears to me that there is a little conflict between Rule 43 and Rule 122, inasmuch as Rule 43 directs the attaching officer to keep the attached goods either in his own custody, or in the custody of one of his subordinates. This is, as a matter of fact, an impracticable rule so far as the amins of subordinate civil Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he attached property would be forthcoming when demanded, or at any rate, under the inherent power of the Court, which had a right to demand the property from the man in whose custody it had been placed by an officer of the Court. A learned Judge of this Court, who heard an application in revision against that order, upheld the decision of the Court below on the ground that Section 145 applied. In my opinion, Section 145 (c) does apply. It appears that when a man comes forward of his own free will and accord to take charge of property attached, and undertakes to make a restitution of the same, he is the person liable as if the decree had been made against him. Again, if for any reason which is not clear to me, it should be said that Section 145 is not applicable, I do not see why we should not hold the man who has appeared in the execution proceedings, to take charge of the goods, responsible for the value of the goods. He gets a chance to show cause why he should not hand over the goods or pay their value, and this is all that is needed for his liability. 28. In any view of the case, the liability of the supurddar seems to be clear. 29. In this particular case, although the h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n from Birjnandan Prasad. 34. On 3rd July 1929, the amin Shakir Husain made his report of these proceedings to the Court filing therewith the supurdnama. He does not appear to have specifically asked for approval by the Court of his proceedings, but it must be held that the Court did approve his proceedings by its order to be found on the order sheet, in which it held that the attachment had been carried out according to law. It is impossible to hold that this order covered only the actual taking possession of the ornaments by the amin and not the handing over of them to the supurddar: it covered the whole proceeding. Brijnandan Prasad at some time after these last events died. On 17th February 1930 the decree-holder applied to the Subordinate Judge for sale of the ornaments, alleging that they were still with the judgment-debtor and that there had been no real attachment, and that they had never really been handed over to Brijnandan Prasad. Making these allegations, the decree-holder did not ask for any relief against either the amin Shakir Husain or the heirs of the supurdar Brijnandan Prasad. On 9th April 1930, the Court gave an opportunity to Shakir Husain to produce the orn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t convenient and economical, but an arrangement which on the findings of fact was approved and even suggested by the decree-holder's representative. It is, in our view, immaterial whether the sipurddar thus approved by the decree-holders own representative actually took the property into his own custody or whether he chose to trust the judgment-debtor. That was a personal matter between him and the judgment-debtor and would affect in no way whatever the liability which he undertook to the decree-holder. The next step was the report of what he had done by the amin to the Court and, as I have found, the approval of what he had done by the Court by its order endorsed on the order sheet. If the Court had not approved the arrangement by the amin his liability would have remained, but once his action was approved by the Court his responsibility ceased unless, of course, some question of fraud or collusion between aim and the judgment-debtor or the rapurddar might be established. But of such there is no question in the present case. With this review of the circumstances and expression of opinion in regard to these legal aspects this judgment might have concluded, but there are two mat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourt had no jurisdiction to direct him to refund the price. 41. The Court went on then to hold that he attaching officer was the only person able. I am unable to assent to the correctness of this decision either as to she immunity conferred upon the surety or as to the liability imposed upon the attaching officer. The rule really applicable was Rule 122. The permission, of the Court required by Rule 123 is permission to appoint a sahana or sahanas. Neither in the case of Badri Prasad v. Chohke Lal, nor in the present ease, is there any question of the appointment of a sahana. I think therefore that both in that case and in the present ease the attaching officer was free from responsibility the moment his actions when reported to the Court had bean approved, and I do not think that it is necessary that such approval should be expressed by the use of particular words. It is sufficient if it can be properly deduced from any order passed by or other action of the Court. 42. I turn now to the question of the liability of the surety. The facts have not been determined, and it is not therefore for us to pass any final order, but we have been referred to the decision in Madho Prasad ..... X X X X Extracts X X X X X X X X Extracts X X X X
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