Imam, J.:— Miscellaneous Appeal no. 185 of 1945 and Civil Revision no. 585 of 1945 are against the order of the Additional Subordinate Judge of Motihari who by a single order dismissed Narendra Prasad Sinha's application under section 47 of the Code of Civil Procedure as well as Nagendra Narain Singh's application under Order XXI, rule 58, Code of Civil Procedure. It appears that a sum of Rs. 17,833 was in the hands of the Muzaffarpur municipality standing in the name of Narendia Prasad. This money was deposited with the said municipality 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 Rs. 17,833 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 the 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 the 10th January, 1945.

It appears that the respondent Maharani Janki Kuer had obtained a money decree against the appellant Narendra Prasad for a sum of Rs. 15,221-5-9 on the 19th December, 1944. On the 8th January, 1945, the respondent filed an application for execution of the decree with a prayer for simultaneous attachment of Rs. 17,833 with the Muzaffarpur municipality standing in the name of Narendra Prasad and also prayed that a notice under Order XXI, rule 22, may issue. On the 9th January, 1945, the municipality had issued a cheque to Narendra Prasad for this sum as stated above and on the 10th January, 1945, a notice under Order XXI, rule 52, was served upon the Chairman of the municipality informing him that the respondent had applied for attachment of certain monies in his hand belonging to the appellant requesting him to hold the said money until further orders of the court. The Chairman in obedience to this notice stopped payment on the cheque already issued.

Mr. P.R Das appearing for Narendra Prasad urged that the order on the municipality made by the Subordinate Judge under Order XXI, rule 52 of the Code was illegal as the Chairman of the municipality was not a ‘public officer’ having regard to the definition of that expression in section 2(17) of the Code of Civil Procedure and that the money in question in the hands of the municipality was not at the time the property of the judgment-debtor Narendra Prasad. It was at best a debt owed by the municipality to him and that the only rule which could possibly be applicable was rule 46 of Order XXI. 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 XXI, rule 51, 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 applicable to a debt not so secured.

It is unnecessary in this case to decide whether by the handing over of the cheque by the Chairman of the municipality to Narendra Prasad the debt of the municipality to him was discharged, nor is it necessary to decide whether the issue of that cheque converted the debt into one secured by a negotiable instrument, for it seems to me that the order of the Subordinate Judge under Order XXI, rule 52, was entirely illegal as the Chairman of the municipality is not a ‘public officer’ within the meaning of the Code of Civil Procedure. Accordingly the order of attachment under, the said rule was no attachment at all. Whether rule 46 of Order XXI was applicable or not, it is quite clear that the provisions of that rule, were never observed.

It was argued, however, on behalf of the respondent by the Advocate-General that no prejudice had been caused whatever the technicalities may be and no interest of third parties was involved in the proceedings. It seems to me, however, that there is a clear distinction between an order of attachment and the things which have to be done as prescribed by the rules in execution of that order. In the case of Muthlah Chetti v. Palaniappa Chetti Lord Shaw observed: “A fasciculus of clauses, beginning at rule 41 of Order XXI and applicable to ‘attachment of property’ shows in instance after instance that attachment is a real thing, with a variety of real applications suited to the nature of the 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 moveables, even shares of salary, and as to attachment of partnership property. In regard to negotiable instruments, the attachment is to be by actual seizure of the instrument which is to be brought into Court”.

“These instances go to show that under the Civil Procedure Code in India the most anxious provisions are enacted in order to prevent a mere order of a Court from effecting attachment, and plainly indicating that the attachment itself is something separate from the mere order, and is something which is to be done and effected before attachment can be declared to have been accomplished”………………

“The order is one thing, the attachment is another No property can be declared to be attached unless first the order for attachment has been issued, and secondly in execution of that order the other things prescribed by the rules in the Code have been done.”

The rule under consideration before the Judicial Committee in the said case was rule 54 of Order XXI. It seems to me, however, that in principle no distinction can be made between attachment of immoveable property and that of moveable property. It has been definitely provided in rule 46 that apart from the prohibitory order upon the debtor a copy of such order shall be affixed on some conspicuous part of the Court-house in addition to a copy thereof being sent to the debtor. It is no one's case that any copy of the order of attachment was in fact affixed to some conspicuous part of the Court-house. It is clear, therefore, that rule 52 had been wrongly applied and the procedure directed in rule 46 had not 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 cost in this Court is assessed at one gold mohur.

Bennett, J.:— 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, an order of the Court to that effect and notice thereof upon the debtor have been fulfilled. I feel, however, compelled to do so for three reasons: Firstly, because on a careful reading of Order XXI, rule 46, Civil Procedure Code, in its context I feel quite unable to distinguish between any of the requirements thereof and to say that some are mandatory and others merely directory. Sub-rule (1) of rule 46 says that the attachment shall be made by a written order prohibiting the creditor from recovering the debt and the debtor from making payment thereof until the further order of the Court. It might be urged with very great force, that the prohibition to the creditor preventing him from recovering the debt is a mere abundance of caution in case the debtor should disobey the order prohibiting him to pay, especially as the rule does not require that any copy of the order should be served on the creditor, and he will, therefore, only be informed of the attachment if he or somebody acting for him happens to see the copy of the order affixed at the Court-house. Nevertheless, where the Legislature has rolled up two requirements in one sentence, nothing on the face of the context to distinguish one requirement from the other, and where one of them is clearly mandatory, as is the requirement prohibiting the debtor from making the payment, I do not feel at liberty, merely because I might myself have provided otherwise, to infer that the Legislature has not intended that both the requirements 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 Court-house, 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 the case of Muthiah Chetti v. Palaniappa Chett have used general language which, unless this case can properly be distinguished, clearly indicates that all the requirements of rules 41 to 54 of Order XXI are mandatory. Having regard to the wording of rule 46, which. I have just considered, there appear to me no possible grounds upon which to distinguish rule 46 from rule 54 of Order XXI, which was the actual subject-matter of the decision of their Lordships of the Privy Council. Thirdly, because, the provisions of rule 46 being mandatory, the failure to comply with any one requirement thereof nullifies the whole proceeding, and where that is so, the failure to comply is no mere error, defect or irregularity in any proceeding such as is curable under section 99 of the Civil Procedure Code. To hold otherwise would, be to use the section to cure the proceeding itself and not any mere error, defect or irregularity therein.

That being so, the other points taken by Mr. P.R Das and Mr. Jaleshwar Prasad, as pointed out in his judgment by my learned brother, do not arise and it is, therefore, unnecessary for us to deal with them. I would not like, however, to leave any impression that I think that there is any substance in either contention. The subject-matter of both contentions is fully and clearly dealt with in Appendix C in Bhashyam and Adiga's commentary on the Negotiable Instruments Act (6th Edition) under the title “Payments by Bills, Notes and Cheques”, and the cases there cited seem to show that the Courts in India have adopted the rules which are undoubtedly the law in England and which seem to me to be corectly stated by the learned author at pages 365 and 367 of Chalmers' Bills of Exchange (Tenth Edition) as follows:—

“Where a bill or note is given by a debtor to his creditor it may be given either by way of payment or as collateral security, the presumption being in favour of payment.”

“Where a bill or note is given by way of payment, the payment may be absolute or conditional, strong presumption being in favour of conditional payment.”

“When the bill or note is dishonoured it seems that the debt which was conditionally paid thereby is to be treated as subsisting throughout. Conversely, when the bill or note is duly honoured, the payment dates from the date of the receipt of the bill or note.”

Appeal allowed.

Rule made absolute.

S.H