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Judgment
Anantanarayanan, J.—This Letters Patent Appeal is directed against the judgment of our learned brother (Basheer Ahmed Sayeed J.) in Appeal Against - Order Nos. 256 and 277 of 1955 before him, in which the learned Judge set aside the order of the learned Subordinate Judge of Pudukkottai in an Execution Proceeding No. 42 of 1954.
The facts have been fully set forth in the judgment, and those that are necessary for the disposal of the present appeal are as follows. In Original Suit No. 219 of 1949 on the file of the Sub Court of Pudukkottai, the Respondent before Basheer Ahmed Sayeed J. obtained a decree against the Appellant there for a sum of Rs. 11,500. This decree was by consent or compromise and dated 22nd June 1953. We are now concerned with only one of its terms, to the effect that
execution against the person and movables of the first Defendant alone be and the same is hereby stayed by one year from this date.
Before the end of thisperiod, the decree-holder sought to attach a decree which the first Defendant had obtained in his turn against a third party, one Kumarappa, for a sum of Rs. 18,000 in Original Suit No. 234 of 1947, on the file of the Pudukkottai Sub Court. Though there was some contest before the learned Judge about the character of this decree, it is not now in dispute that it was a money decree simpliciter, not involving any interest in immovable property. On 23rd June 1954, the first Defendant judgment-debtor transferred this decree in Original Suit No. 234 of 1947 in favour of his wife, and this transfer was subsequently impugned as fraudulent. It is sufficient for our purposes to note that, according to the facts stated before us, the transfer itself has been held to be an act of insolvency.
However this might be, the Respondent before the learned Judge (the decree-holder) filed Execution Proceeding No. 42 of 1954, to attach this money decree. The judgment-debtor objected on the ground that the decree sought to be attached was his movable asset, which could not be proceeded against within theperiod of one year, according to the terms of the clause of exemption in the compromise decree. On the 11th November 1954, the learned Subordinate Judge overruled this objection of the judgment-debtor, and adjourned the hearing of the execution application. The Court also actually attached the money decree in Original Suit No. 234 of 1947, as an interim measure. Later, the execution petition itself was once dismissed for default, subsequently restored to file, and finally further proceedings in execution were allowed.
There were two appeals before the learned Judge (Basheer Ahmed Sayeed J.), but one of them (Civil Miscellaneous Appeal No. 256 of 1955) was withdrawn and dismissed, and we are only concerned with the order in the surviving appeal. The learned Judge accepted the argument of the judgment-debtor that the money decree in Original Suit No. 234 of 1947 was a movable asset, which could not be proceeded against within theperiod of one year, under the terms of the consent order, The learned Judge referred to the definitions of immovable property and movable property to be found in Clause 3 of the General Clauses Act, and came to the conclusion that this money decree could only be interpreted as falling within the category, of movables. The order of the learned Subordinate Judge was set aside by our learned brother, and it is from this conclusion that the present appeal has been filed.
We might immediately observe that, if due regard is paid to the language of the term in the consent decree, and the probable intentions of the parties, it will at once be clear that the prevailing idea was to save the judgment-debtor from the humiliation of arrest of his person, or the distraint of his concrete movable goods by the entry of the bailiff into the house with a warrant of attachment, for theperiod of exemption specified. Perhaps also, thisperiod was to constitute a kind of locus paenitentiae. Thus, the decree-holder could obtain satisfaction of his claim by proceeding against the immovable properties of the judgment-debtor, or the judgment-debtor himself could have the liability liquidated. In the context of this interpretation, it will be apparent that the probabilities are very much against an inference that the parties entering into the term had anything in mind except concrete movable goods, such as furniture, vessels, etc., to be usually found in a dwelling house. It is very doubtful, to say the least, if the parties really had in contemplation an intangible asset like a decree for money against a third party. The learned Judge (Basheer, Ahmed Sayeed J.) thought that there was force in these contentions of the decree-holder. But he proceeded to observe:
But if a decree of Court in which the judgment-debtor, his interest, or for the matter of that, if any shares or other assets held by the judgment-debtor are also attached, it is also likely to give rise to humiliation to the judgment-debtor, though not in the immediate surroundings in which his dwelling house is placed, but in the other spheres in which he holds these assets of a movable character.
With great respect to the learned Judge, we do not think that the true character and scope of the term in the consent decree should be interpreted upon such a line of reasoning. On the contrary, we think that due regard should be paid to the context of facts, the actual language employed, and the probable intention of the parties. Judged by this standard, we have no doubt that the parties should have had in mind only the humiliation involved in an arrest of the person, of the distraint of concrete goods in the possession of the judgment-debtor by a bailiff or a similar officer, and that the attachment of a decree by a prohibitory order was a contingency which could not have been in the minds of the parties at all.
But, even if we assume that the kind of execution with regard to movables which the parties had in mind, would include an execution against any asset falling under that category, it is very clear that a decree of Court cannot be included as a movable asset, for the purpose of several significant provisions relating to execution against movable properties in the Code of Civil Procedure. This point is covered by the authority of two decisions, namely, Maung Lun Bye v. Maung Po Nyun I.L.R.(1923) Rang. 360 which is a Bench decision of that Court and AIR 1940 270 (Nagpur) which is a Bench decision of Stone C.J. and Vivian Bose J. We shall turn to these citations at once.
In Maung Lun Bye v. Maung Po Nyun I.L.R(1923) Rang. 360 the learned Judges pointed out that a, money decree was not movable property within the meaning of Order XXI, Rule 78, Code of Civil Procedure. They have also referred to Order XXI, Rules 43 and 53, Code of Civil Procedure. This decision is very brief in its reference and exhibits no reasoning. But a full analysis of the relevant provisions have been made in Chintaman Ramji v. Mahadeo Ganesh AIR 1940 Nag. 2711 The learned Judges observe
Order 21 Rule 43 directs that when the property to be attached is movable property, other than agricultural produce, and is in the possession of the judgment-debtor, the attachment shall be by actual seizure.
The learned Judges then referred to Order XXI, Rules 44, 45, 46, 47, 48, 49, 51, 52 and 53 which deals with the attachment of decrees. After this analysis they stated at page 272:
It is clear, in view of these special provisions, that decrees cannot be dealt with as "movable property", otherwise there would be a clash between Rules 43 and 46(3) and these other rules which relate specially to decrees. It follows that decrees are not treated as "movable property for the purposes of these special provisions which relate to attachment.
We respectfully follow the reasoning and inference of this decision, and, since it is clear authority for the view that decrees are not treated as movable property for the purpose of the special provisions which relate to attachment in the Code of Civil Procedure, referred to, even upon the ground of strict interpretation of the language employed, apart from the context, or the probable intentions of the parties, we are clear that this money decree cannot be included in the category of movables which have been exempted from proceedings in execution in the term of the compromise decree. We are fortified in this view by the two decisions cited.
But we have made a further scrutiny of the question also, in view of the definitions in Section 3 of the General Clauses Act (Act X of 1897) referred to by the learned Judge. In the Act, immovable property is defined as including
land, benefits to arise out of land, and things attached to the earth, or permanently fastened to anything attached to the earth.
Movable property is defined to mean
property of every description except immovable property.
We have examined the scheme of Acts like the Transfer of Property Act, the Succession Act, etc., in order to discover if such a mode of classification of property is exhaustive, or only specially applicable, and whether other modes of classification, which may take in intangible assets like decrees, shares, etc., with greater logical propriety, are not permitted in law.
We might here state that, etymologically speaking, the term movable or immovable property is certainly limited in its application to concrete physical objects. The extended definition by which the term has sometimes been held to include intangible assets like debts or shares, appears to be really a kind of legal fiction. It is interesting to note that in the Law Lexicon of Ramanatha Aiyar (1940 edition) movable is defined as
Something substantive which has locality and may move or be moved, including money and bonds for money, but not a debt merely as such.
The work further proceeds to state categorically that movable property must have an actual locality and must be susceptible of locomotion or a change of place. For reasons which we make clear, a little subsequently, the term is unknown in English law. While upon this aspect of definition, we might also refer to the distinction between movable and immovable property expounded by Holloway Ag. C.J., in Sukry Kurdeppa v. Goondakull Nagi Reddi (1871) 6 M.H.C.R. 71 The learned Judge observed:
Movability may be denned to be a capacity in a thing of suffering alteration of the relation of place. Immovability incapacity for such alteration.
But, of course, the grammatical restriction may be transcended in legal use, which permits an extension of scope. Thus, in a very early case, Doorga Dayee v. Poorun Dayee (1866) 5 Suth. W.R. 141 we find an extract from Macnaghten''s Hindu Law, in which that learned author claimed that Hindu law classed amongst things immovable that which is of an opposite nature, such as slaves, etc. As was conceded before us, a mortgage could be looked at as immovable property, but also as movable property, when the primary emphasis was upon the debt itself, and not upon the security of land which was attached to the debt. The Allahabad and Calcutta High Courts have held that a decree for sale of immovable property on a mortgage, is not immovable property within the meaning of Order XXI, Rule 54, Code of Civil Procedure. Vide Abdul Majid v. Muhammad Faizullah ILR (l890) All. 89 Ahmad Khan v. Abdul Rahman Khan I.L.R.(1904)All. 603 and Gous Mohomed v. Khawas Ali Khan I.L.R (1896) Cal. 450
As pointed out in Williams on Real Property (XXIII edition) pages 3 and 4, the word property itself can be employed in three different senses, (i) as denoting an abstract right of ownership (ii) as denoting the object of a right of ownership and (iii) as denoting valuable entities or rights, which may be exchanged for the ownership of money. In Salmond''s Jurisprudence (tenth edition, page 425) we find that this learned author classifies property broadly into jura in re propria and jura-in-re aliena. Within the first division, again, there is a further division of corporeal property (which includes land, and chattels) and incorporeal property which would include rights and interests per se of an intangible character. In Roman law, things corporeal were divided into movable and immovable. The English law does not know this definition, though it developed its own categories of realty and personalty. Real actions were so called from the expression actio realis used by Bracton and other early writers on English law, as equivalent to the term actio in rem which Bracton borrowed from Roman law. Thus, a real action was that where in the required restitution could be effected by the process of execution issuing directly against the thing demanded in the action. Personal actions on the other hand, were brought to enforce an obligation imposed on the Defendant personally, to make satisfaction to the Plaintiff for breach of contract or for wrong. Real actions were brought for the specific recoveries of lands or tenements, and a personal action was that in which the owner could not obtain specific restitution, but had to be content with a pecuniary compensation or damages. All this had feudalism and feudal tenures as its background, Personal property again fell into two Masses chattels real and chattels personal, chattels real being lease-hold interests, etc., As Farwell L.J. observed in Hoyles, In re App. (1910] 80 L.J. Ch. D. 274
The division into movable and immovable property is not part of the law either of England or of Canada, and is only called into operation in England when the English Courts have to determine rights between domiciled Englishmen and persons domiciled in countries which do not adopt the English division into real and personal property.
When we examine the scheme of Indian statutes like the Transfer of Property Act or the Succession Act, we see that the classification of property into immovable and movable has generally been adopted as the background of thes8 statutes. But it is noteworthy that the Transfer of Property Act does not define either immovable property or movable property, though there is some reference to immovable property in the first clause of Section 3. Section 54 of the Transfer of Property Act creates a distinct category of tangible property, as contrasted with the case of a reversion or other intangible thing. The use of the term thing in this context has been characterised as unhappy, by the Judical Committee in M.E. Moolla and Sons, Ltd. v. The Official Assignee of Rangoon I.L.R.(1936) Rang. 400 In the Privy Council decision in Imperial Bank of India v. Bengal National Bank (In Liquidation) (1931) 59 I.L.R.Cal. 377 (P.C.) it is noteworthy that, with reference to the law in India, Lord Atkin appears to assume that debts must be classified as movable property, presumably since the Transfer of Property Act does not adopt any other classification, though it certainly does refer to actionable claims. But this classification of debts as movables necessarily leaves us with a sense of intellectual frustration. Witness the following passage from Sheppard''s Touchstone:
A bequest of all testators "movables" doth pass all his personal goods, both quick and dead, which eher move themselves, as horses, sheep and the like, or may be moved by another, as plate, household stuff, corn in store, etc.... and by a devise of immovables do pass leases, rents, grass and the like.... debts will not pass by either of these divises. Touch 447.
In English law, a judgment-debt is a chose-in-action and is thus part of property which is personalty. The corresponding term in Indian law for a chose-in-action would be actionable claim. But this would not include a decree, since the action has already occurred, Vide Afzal v. Ram Kumar Bhudra I.L.R.(1886) Cal. 610, Krishnaswami Naidu v. Andi Chetti I.L.R.(1927) Mad. 681, Dagdu v. Vanji I.L.R (1900) 24 Bom. 502 and Jugalkishore Saraf v. Raw Cotton Co., Ltd. (1955) 1 M.L.J. 220 (S.C.) We are thus driven to the logical necessity of constructing a classification of property rights, which would be more adequate than the two categories of immovable and movable. Such a classification is available to us, in the distinction between corporeal and incorporeal property, which has been known to writers of jurisprudence from early times. The development of law in England, in this respect, is not helpful to us. For the categories there grew out of the nature of the action which could be enforced, and finally attached themselves (as we have already seen) to lands, tenements and hereditaments on the one hand, and to goods and chattels on the other. On the contrary, there would appear to be no absolute principle or consistency, in the use of words like immovables or movables in our own codified law, substantive or processual. A mortgage may be regarded sometimes as immovable property and sometimes as movable. Again, incorporeal assets like decrees have been excluded from the category of movables, for the purpose of execution, in several relevant sections of the Code of Civil Procedure.
We find a helpful discussion upon this aspect in Dicey''s Conflict of Laws sixth edition, page 557. Earlier in that work the learned author discusses choses-in-action and chattels real, etc., and he finally observes:
The distinction between movables and immovables must not be confused with the distinction between tangible and intangible things. Tangible things are either movable or immovable. Things may be the subject of legal interests.... But complications arise if the thing which is the subject of the interest is itself intangible, e.g., debts, stocks and shares, patents, trade marks, copyright and goodwill. In reality, the distinction between movables and immovables is not appropriate to these intangible things, since a thing which cannot be touched obviously cannot be moved. Logically, therefore, things should be classified as being (1) tangible things, which may be either (a) movable or (b) immovable, and (2) intangible things.
We would consequently suggest that, when enactments such as the Transfer of Property Act and the CPC are taken up for revision by the Law Commission, attention should be focussed upon this aspect, and the inadequacy of the existing categories of immovable and movable which also have either not been defined at all in the relevant enactments, or defined negatively by a process of exclusion should be remedied by suitable definitions,which render it clear that property should really be viewed as corporeal or incorporeal, corporeal property further admitting a division into immovable and movable property.'' This would be logically perfect. It would furnish an adequate basis for reference to property or interest in property of every conceivable kind, and it would also be true to the etymological derivations of these concepts.
For reasons furnished by us above, we are of the view that the consent term in this case did not include the money decree which was attached by the decree -holder. Consequently, we allow the appeal and restore the order of the learned Subordinate Judge, which was set aside by Basheer Ahmed Sayeed J. Parties to bear their own costs.