Gopeswar Dassmullick and Others vs Abdul Malik Abdulla

K.J. Sengupta, J.—This Rule is directed against the judgment and decree passed by Sri S. Pande, Judge, Second Bench of the Court of Small Causes, Calcutta, in Suit No. 2423 of 1973. The facts out of which this Rule arises may shortly be stated like this: The opposite party is a tenant under the petitioners in respect of room No. 27 of premises No. 16, Rabindra Sarani, Calcutta, at a rental of Rs. 41/- per month payable according to English Calendar month.

The petitioners wanted to realise rent of the room in question not from the opposite party but from Messrs. Ranjit Kumar Banerjee (Stevedore) Private Limited and on his prayer Distraint Case No. 195 of 1973 was started and some properties were attached. It was alleged by the petitioners that those properties belonged to Messrs. Ranjit Banerjee.

The opposite party in that case objected to the said attachment, claiming that goods in the said room belonged to him as he was the tenant in respect of the room in question and not Messrs. Ranjit Kumar Banerjee (Stevendore) Private Limited.

On that allegation the opposite party brought the Suit No. 2423 of 1973 in support of the claim, preferred by his man one Ram Sevak Shaw.

The properties were attached on 25.5.73 and the suit was filed on 13.6.73. The opposite party obtained permission to file the suit as the same was field beyond 10 days in terms of Chapter XXI, Rule 47 of the Act. Being summoned the petitioners who were the defendants in that case appeared and contested the case.

The learned Judge decreed the suit of the plaintiff opposite party on 4.7.73. Against the said order this application u/s 115 of the CPC has been filed.

The contention of Mr. Roy Chowdhury learned Advocate for the petitioners is that the prayer of the opposite party for releasing the seized articles being made after 5 days of the seizure, it was hit by limitation in view of the provision of section 60 of the Presidency Small Causes Courts'' Act 1882 (hereinafter referred to as the Act).

Mr. Biswas, on the other hand, has submitted that the said section 60 of the Act has got no application in such cases. Even if it is said that the opposite party had such a remedy u/s 60 of the Act, his remedy u/s 61 is not barred.

The submission of Mr. Roy Chowdhury in this regard though attractive is not sound. The language of sections 60 and 61, if considered, and if these sections are read in between the lines they will show that these sections have been enacted to cover two different sets of cases. Section 60 gives a very speedy remedy to the debtor generally if he comes to the Court within five days and makes a prayer for discharge, suspension of warrant or for release of the distraint article and the Judge may pass such an order but on certain terms. Even the Judge has got the power or authority under the provision of the said section to give some reasonable time to the debtor to pay the dues.

The said provision of section 60 also extends to "any other person alleging himself to be the owner of the property seized under this Chapter". But the main purpose of section 60 is to see that the property is not sold and the necessary orders to suspend the warrant or to release a distraint article or to discharge the same are passed on certain terms. That is the provision which has been made in section 60.

Coming next to the provisions of section 61 the position as seen, is quite different. This section provides for the adjudication of the claimant''s right and title to the property. A stranger can only prefer a claim; no question of discharge, suspension of warrant or release of the distraint article on any terms are contemplated therein. If the claim is allowed the property is released. No interim order on terms is contemplated in this section.

A similar point was raised before Ameer Ali, J. in the case of Mrs. Tope v. The Karnani Industrial Bank Limited reported an 36 C.W.N. 530 his Lordship was pleased to observe:

The first section provides for summary and immediate relief against distraint. It allows a debtor to come in and obtain time: it allows the owner to procure immediately a release of the property upon terms. Section 61 on the other hand provides for the adjudication of the claimants'' right and title to the property. I therefore think that Mrs. Tope having made application u/s 60 (whatever the result of that application) was not precluded from taking further steps to establish her title.

The facts of this instant case stand on a stronger footing. The opposite party did not file any application u/s 60 of the Act but filed a suit u/s 61 of the said Act.

The question that arises for consideration is whether the opposite party actually comes under the'' provision of section 61. Some precise procedure is provided in section 61 for starting a proceeding under the said section, and in the instant case it was not followed. The said defect of course does not take away the jurisdiction of court to entertain such a suit. The last part of section 61 lays down that the procedure in the small cause courts in cases under this section shall conform, as far as may be, to the procedure in an ordinary suit in such courts. It is seen from the record that the only procedure which has been laid down to deal with the case of claim is found in Chapter XXI, Rule 47. By way of abundant caution, the opposite party '' also took permission to proceed with the case as he filed the same beyond 10 days from the date of attachment or order of seizure of the property. As already stated the petitioners entered appearance before the court and contested the claim of the defendants in that suit. Even if there was any defect in the procedure laid down in section 61 of the Act, still then when the trial took place and the parties having had notice, entered appearance and adduced evidence, none of them should be allowed to say that he was prejudiced by the trial. In the case cited above such a point was also considered by his Lordship and the learned Judge was of the view that though the matters specified in section 115 of the Code are in a sense matters of procedure, not all matters of procedure come under that section.

On the facts of the case nothing has been shown from which it can be said that the petitioners have been prejudiced by the order of the Court. Mr. Roy Chowdhury wants to make out a case that the opposite party ought to have preferred the claim within five days from the date of attachment and as he failed to do that, the petitioners got a right absolute in the property seized and to sell the same and realise the dues. I do not agree with the said contention of Mr. Roy Chowdhury. It has already been noticed that separate provisions have been made for separate purposes in sections 60 and 61 and one has got no connection with the other. The provisions of section 61 have got to be applied independently of section 60 and for that there is no period of limitation prescribed.

For the reasons stated the impugned judgment should not be interfered with. Before I close I must keep on record my appreciation for the valuable assistance I got from Mr. Roy Chowdhury and from Mr. Biswas who appeared as amicus curiae and placed the law in its different aspects concerning attachment under the provisions of this Act.

In the result, the Rule is discharged but without any order as to costs.

Let the records be sent down without delay.