Keshavlal Madhavji vs Bibi Soghra and Others

Saunders, J.—This is an appeal from an order of the Subordinate Judge of Chapra allowing an objection in an execution case. The N.R. Coal Company brought a suit in the Court of the Subordinate Judge of Dhanbad in December 1924 for an account against a man named Sujait Khan, and his brothers, the claim against these persons being valued at nearly Rs. 80,000, and in the same month made an application under Order 38, Rule 5, Civil P.C., for attachment before judgment of some of their properties including a debt of Rs. 36,195-4-7, owed to them by two residents of the District of Saran, Bibi Soghra and her son Zafrul Haque. The application was rejected so far as it related to the debt. The High Court being moved in the matter directed on 21st May 1925, that if the defendants were to give security for the sum claimed in the suit, which counsel on their behalf stated would be given, its sufficiency would be considered by the Subordinate Judge and if it should be found sufficient there would be no attachment before judgment.

Security was furnished in respect of only a portion of the claim and it was accepted, and when the plaintiff asked for security for the balance the Subordinate Judge held that the claim for any additional security had been waived. On 22nd December 1925, a preliminary decree was passed in the suit. Another application for revision was made to the High Court by the plaintiff against the order of the Subordinate Judge with regard to the security and the High Court ordered on 11th May 1926, that the original undertaking given to the High Court on behalf of the defendants must be strictly fulfilled and that if security for the balance of the plaintiff''s claim were not offered attachment before judgment must issue as originally claimed.

There was again default on the part of the defendants, and on 24th July 1926, the Subordinate Judge directed in the presence of the defendants the issue of attachment before judgment as originally prayed for. After that the record seems to have been sent to the High Court where it was required for another purpose. On another application by the plaintiff an order in the same terms was made on 17th July 1927. The notices to be served upon the defendants and upon the defendants'' debtors were delivered to the plaintiff on his request for service in Chapra. The notice was served on Sujait Khan on the 4th October. The question whether it was served also upon Bibi Soghra and Zafrul Haque on the 23rd November is one of the questions for decision in the present case. In the meantime on 30th June 1927, Sujait Khan and his brothers obtained a decree for Rupees 28,900 in accordance with an award of arbitrators in respect of the debts sought to be attached.

The suit had been instituted by them in 1924 and an appeal against the decree preferred by Bibi Soghra and Zafrul Haque was rejected by the High Court, but two applications for revision in respect of the same decree were admitted.

On 28th November 1927, a final decree was passed for Rs. 83,683, in favour of the N.R. Coal Company in the suit for accounts and in the next month the decree was assigned to another person who appears to have been a benamidar on behalf of the appellant to whom afterwards he surrendered his rights under the decree. The decree-holder obtained satisfaction of the decree to the extent of Rs. 30,000, in an execution case. When he learnt that Bibi Soghra and Zafrul Haque, the respondents in this appeal, had made applications to the High Court in respect of the decree obtained against them by Sujait Khan and his brothers he made applications to be joined as a party in the revision cases.

He suspected collusion and apprehended that the cases might by consent be disposed of in a manner disadvantageous to himself. He gave these reasons as the grounds of his applications and stated also that the debt due from Bibi Soghra to Sujait Khan and his brothers had been attached by the Dhanbad Court. The first of these applications was made on 27th February 1929, by the nominal decree-holder and the second on the 15th March by the appellant, and notice of both of them was given to the lawyers who appeared for the parties in the cases before the High Court.

On these applications an order was made by the Deputy Registrar directing that they would be considered by the High Court at the time of the hearing of the applications for revision. The applications for revision were withdrawn on 17th May 1929. In the meantime Sujait Khan and his brothers had, on the 20th March, put in a petition in the execution Court in Saran admitting satisfaction of their decree."

The appellant on 6th June 1929, applied for execution of his own decree in respect of the properties for which an order of attachment had been made by the Subordinate Judge of Dhanbad including the debt due to the judgment-debtors from Bibi Soghra and Zafrul Haque. The judgment-debtors in the appellant''s execution case raised objections all of which were overruled by the executing Court. The execution petition however was dismissed by the Court on the ground, which the judgment-debtors had not themselves taken, that the debt had already been decreed and the decree had been fully satisfied. The matter was taken to the High Court by the appellant and the order of the execution Court was set aside on 13th February 1932. Macpherson, and Dhavle, JJ., by whom the appeal was heard, came to the conclusion that the alleged satisfaction of the decree was a mere device resorted to in order to defeat the realization of the Dhanbad decree.

The appellant then proceeded in execution against Bibi Soghra and Zafrul Haque for recovery of the debt which they owed to the judgment-debtors in his own suit and they objected to the execution on the grounds that the decree against them had been satisfied, that even if it had not been satisfied the decree itself has never been attached, and that they had received no notice of attachment of the debt. An objection was also taken that Zafrul Haque was a minor from 1925 to 1927, but this objection was abandoned during the hearing of the ease. The Subordinate Judge allowed the other objections and it is against that order that the present appeal has been preferred.

I shall consider first the question whether notice of attachment of the debt was served on the respondents. The service-return of the process is Ex. A. In the case of Bibi Soghra it is to the effect that a copy of it was given to a maidservant of the lady named Majidani, who after taking it inside the house returned it to the peon unacknowledged, and the peon therefore proclaimed its contents in a loud voice and affixed it to a wall of the house. The process bears what purports to be the signatures of two residents of the village, but the only witness examined by the appellant to prove the service was the peon himself and he added nothing to what was stated in the report. Bibi Soghra, her son and her tahsildar denied that she ever had a servant named Majidani.

It is contended on behalf of the appellant that the witnesses should not be believed on this point because Bibi Soghra also denied having had a maidservant at all, a statement shown to be untrue by an admission of her tahsildar that she had had a maidservant for many years. What she actually said however was that she employed no regular maidservant, but that a woman named Bechan was sent for and worked for her whenever she was required, and this is the woman to whom the tahsildar referred to as being her maidservant. On the other hand, no evidence was given by the appellant to prove that Majidani was her servant or even that the woman to whom the process was given was Majidani. The peon did not know the woman or her name. If the notice was given to a woman named Majidani and she was the maidservant of Bibi Soghra the fact could have been established by the evidence of the persons in whose presence according to the report the service was effected.

The report of the service of the notice on Zafrul Haque is itself sufficient to show that the service was not proper and the finding of the learned Subordinate Judge regarding the attempt to serve the notice on this respondent has not been challenged by the learned Counsel for the appellant. The report states that as the peon was informed that Zafrul Haque had gone to Asansol on business he attached the notice to the house. I agree therefore with the learned Subordinate Judge that notice of the attachment of the debt has not been proved to have been duly served on the respondents. Mr. Manohar Lal appearing for the appellant contended that it is immaterial whether the respondents had notice from the execution Court of the order of attachment or not because they were given notice of it by the appellant when the respondents'' revision applications were before the High Court.

That the lawyers of the respondents were informed of the attachment of the debt has been proved by the notice given to them which they accepted and it must be presumed that the information was communicated by the lawyers to their clients. But this fact alone does not make the attachment effectual against the respondents. Mr. Manohar Lal relied upon Sub-rule (6), Rule 53, Order 21 which provides:

On the application of the holder of a decree sought to be executed by the attachment of another decree, the Court making an order of attachment under this rule shall give notice of such order to the judgment-debtor bound by the decree attached; and no payment or adjustment of the attached decree made by the judgment debtor in contravention of such order after receipt of notice thereof, either through the Court or otherwise, shall be recognized by any Court so long as the attachment remains in force.

It is contended that the respondents had notice of the attachment otherwise than through the Court and therefore the payment of the decree cannot be recognized. The argument assumes that the words "either through the Court or otherwise" refer to the words "receipt of notice thereof" and not to the words "no payment or adjustment of the attached decree by the judgment debtor," but it is unnecessary to consider this question because it is not a case of an attachment of a decree, but of an attachment of a debt. It is true that the debt merged in the decree and that therefore if there was valid attachment of the debt the alleged satisfaction of the decree would be void u/s 64 against all claims and objections under the attachment, but the mere order to make an attachment does not amount to an actual attachment. The attachment is not complete until it has been effected in the manner prescribed by the rules.

The rule prescribing the procedure to be followed in the case of attachment of a debt is Rule 46 which provides in Sub-rule (2) that a copy of the order prohibiting the debtor from making payment of the debt until the further order of the Court shall be sent to the debtor. It cannot be deemed to have been sent to the debtor unless it was duly served upon him. As this requirement has not been fulfilled there was in fact no attachment of the debt and the provisions of Section 64 are not applicable.

The question however remains whether the decree against the respondents was satisfied. (His Lordship then discussed evidence and concluded that no payment was made towards the decree). I would accordingly allow the appeal to this extent: that it be declared that the decree against the respondents has not been satisfied by them and still subsists; and as the appellant has thus succeeded substantially, I would allow him costs throughout.

Agarwala, J.

I agree.