Biswas, J.:— The Appellants before us are two ladies, Sm. Jagattarini Dasi and Sm. Binapani Dasi, who obtained a decree in a suit for possession and mesne profits under Or. 20, r. 12 of the Code of Civil Procedure. The decree directed an enquiry as to the mesne profits, and in this respect was not a final decree. It was passed on the 22nd March, 1938.
About a year later, on the 3rd March, 1939, while the investigation as to mesne profits was still pending, the decree-holders made art application for attachment of the property of two of their judgment-debtors, Defendants Nos. 1 and 2, Saroj Ranjan Pal Chowdhury and Prafulla Ranjan Pal Chowdhury. This application was made under Or. 21, r. 42, which provides that “where a decree directs an enquiry as to rent or mesne profits or any other matter, the property of the judgment-debtor may, before the amount due from him has been ascertained, be attached, as in the case of an ordinary decree for the payment of money.”
The property sought to be attached was a money decree for a sum of about Rs. 19,000 which the said judgment-debtors had obtained in Money Suit No. 75 of 1935, and which it was stated, they had since assigned, along with other properties including their dwelling-house, to their respective wives, Matimala Dasi and Draupadi Sundari Dasi, Respondents Nos. 3 and 4 in this appeal. The Appellants' case was that this assignment was a fictitious one.
On receipt of the application for attachment, the learned Subordinate Judge, instead of making an order attaching the decree, started an enquiry as to whether it was really the property of the judgment-debtors or of their wives. For this purpose, notice was directed to be served on the two ladies, and although it is not clear from the order-sheet whether notices were actually issued to them, the fact remains that they both entered appearance and raised objections to the proposed attachment. Objections were also preferred by Saroj Ranjan and Prafulla Ranjan on the ground that they had ceased to have any interest in the decree. The learned Subordinate Judge having heard the matter on affidavits finally made an order on the 10th May, 1939, disallowing the prayer for attachment. It is against this order that the present appeal is directed.
A preliminary objection was taken by Mr. Panchanan Ghose to the competency of the appeal on behalf of the Respondents Matimala and Draupadi Sundari, who may be referred to hereafter as the objectors. It was contended, in the first place, that the order under appeal was not an order in execution and did not come under sec. 47 of the Code, and that, therefore, no appeal lay. In the second place, it was urged that in any case in so far as the order was one determining a question between the decree-holders on the one hand and the objectors on the other, it was not open to appeal under sec. 47, the objectors not being parties or representatives of any parties to the suit. We are of opinion that on both points the preliminary objection must fail.
As to the first point, execution no doubt presupposes the existence of a decree which is capable of execution, and strictly speaking, there can be no execution for mesne profits until the amount of mesne profits has been ascertained and incorporated in the decree. The principle is the same as the Code itself recognises, as, for example, in sec. 118 which provides, in the case of a decree passed by the High Court in the exercise of its Original Civil Jurisdiction, that where the decree awards costs, so much thereof as relates to the costs cannot be executed until the amount has been ascertained by taxation. But while this is undoubtedly the general rule, it cannot be overlooked that the legislature has made special provision for certain cases by way of exception by enacting Or. 21, r. 42.
Not only does this rule authorise attachment for mesne profits before the amount of such profits has been ascertained, but it further lays down in distinct terms that the attchment will be “as in the case of an ordinary decree for the payment of money.” This plainly shows that the object is to assimilate the proceedings under such attachment to the proceedings which follow on an application for attachment in execution of a money decree. It may be conceded that every attachment is not an attachment in execution: the Code in fact expressly contemplates attachment before judgment, which is not execution at all. But attachment under Or. 21, r. 42 is quite a different proceeding, as will be evident from a comparison with the provisions of Or. 38 itself, which deals with attachment before judgment. Rule 7 of Or. 38 no doubt says that save as otherwise expressly provided, attachment before judgment shall be made “in the manner provided for the attachment of property in execution of a decree,” but this merely refers to the manner in which such attachment is to be effected. The words used in Or. 21, r. 42 are wholly dissimilar and clearly have a much wider meaning.
As already pointed out, Or. 21, r. 42 provides that the attachment thereunder will be “as in the case of an ordinary decree for money.” There can, in our opinion, be no doubt that the intention is to treat such attachment as a proceeding in execution, and it will consequently attract all the provisions relating to execution proper, including those for investigation of claims and objections. This in fact appears to be the reason why no separate provision has been made for various matters which it would otherwise have been necessary to provide for in the case of attachment under Or. 21, r. 42. It is worthy of note that such specific provision has had to be made as regards attachment before judgment, e.g, in rr. 8, 10 and 11 of Or. 38. The inference seems, therefore, to be irresistible that while attachment before judgment may not be a proceeding in execution, attachment under Or. 21, r. 42 certainly is. It follows accordingly that the order in question here must be treated as one relating to execution and coming within the purview of sec. 47 of the Code. The objection to the competency of the appeal on this ground must, therefore, fail.
As regards the second branch of the preliminary objection, it is devoid of merit. As we read Or. 21, r. 42 of the Code, on an application under this rule, the Court has no jurisdiction to enter into an investigation of claims and objections to the proposed attachment at the stage the application is made. The only question then before the Court is one between the decree-holder and the judgment-debtor, and if the property to be attached is specified by the decree-holder in his application as the property of the judgment-debtor, the Court is bound to make an order for attachment as if the attachment was being asked for in the ordinary course of execution of a decree for the payment of money. It so happens that because the learned Subordinate Judge did not in the present case follow the procedure which the Code contemplates, he had before him a number of parties who were not entitled to come in at all at that stage; but we do not think that this can affect the character of the order. In any case, the fact remains that objections were filed not only by the stranger objectors, but also by the judgment-debtors, and from this point of view, the order cannot but be regarded as one relating to a question arising between the parties. As such, the order will be open to appeal under sec. 47 of the Code, and this second objection must also be, therefore, overruled.
Coming now to the merits of the appeal, it is clear that the order of the learned Subordinate Judge cannot be supported, on the simple and sufficient ground that it is not in accordance with the procedure laid down in the Code. Mr. Panchanan Ghose strenuously contended that even if the order was technically wrong, in so far as the correct procedure was not followed, it was in substance an order which the Court was competent to pass at a later stage on the filing of a claim or objection under Or. 21, r. 58. We do not think, however, that the irregularity was one of mere form and not of substance. Where a claim or objection is preferred after attachment, the attachment subsists in the event of such claim or objection being ultimately decided in favour of the decree-holder. If, on the other hand, the Court were to embark on an investigation of claims and objections before attachment, the decree-holder would necessarily be deprived of the protection which attachment is intended to give him during the intermediate period. In other words, the consequence of entertaining claims and objections before ordering attachment would be to defeat the very object of attachment. From this point of view, there can be no doubt that the course followed by the learned Subordinate Judge in this case was calculated to cause serious prejudice to the decree-holders.
Apart from this, the order itself will show how the decree-holders were in fact prejudiced. If a claim or objection is preferred after attachment, then there is a straight issue to be determined by the Court in a proceeding under Or. 21, r. 58. Here, however, it will be seen that the learned Subordinate Judge was unconsciously diverted from the main issue by irrelevant considerations, and this, we think, was the direct result of his having entertained the question at a premature stage. He dealt with the application before him as if it was an application for attachment before judgment, and one of the main grounds he gave for throwing out the application was that a previous application for attachment before judgment had been rejected. He held that there had been no new circumstances since which would justify the Court again in ordering an attachment. The learned Subordinate Judge was, in our opinion, wholly wrong in applying to the present application the considerations which would govern an application for attachment before judgment. He further overlooked that since the rejection of the last application, a new and important fact had come into existence, namely, the decree which the Plaintiffs obtained for possession and mesne profits, though no doubt the amount of mesne profits still remained to be ascertained. The position had in fact entirely changed, and, merely because attachment had been refused before judgment, that was no reason why attachment should have been refused after there had been a decree adjudging the Defendants' liability for mesne profits.
The learned Subordinate Judge did no doubt go into the question of the benami character of the assignment of the decree sought to be attached, and purport to come to some sort of a finding that the assignment was not benami, but it is impossible to accept this as a proper or legal determination of the question when it was mixed up with other matters wholly irrelevant to such an issue.
We are of opinion, therefore, that the decree-holders have a legitimate ground for complaint, and the order of the learned Subordinate Judge must consequently be set aside. In our judgment, he should have made an order for attachment, leaving it to the parties concerned to prefer such claims or objections after the attachment as were open to them under the provisions of Or. 21, r. 58, or otherwise.
Having regard to what has happened, we cannot direct an attachment ourselves with retrospective effect from the date on which the application had been made, and Mr. Das appearing for the decree-holders does not ask for such an order either. The proper course will, therefore, be to allow the appeal, and set aside the order of the learned Subordinate Judge, and direct him to deal with the application for attachment which was filed before him on the 3rd March, 1939, in accordance with law. The decree-holder will be at liberty to amend the application in view of subsequent events, and it will be open to the other parties to take such steps as they may be advised for the protection of their interests under the law. Any findings which the learned Subordinate Judge may have recorded on the question of the benami character of the assignment or of any other matter will not bind the parties in any way in future proceedings.
As regards the costs, we think that the Respondents may have some ground for saying that they have been dragged into these proceedings by reason of the action of the Court. In the circumstances of the case, although we allow the appeal, we make no order for costs.
Roxburgh, J.:— I agree. The main question for determination is as to the interpretation to be given to r. 42 of Or. 21 and as to what is the procedure laid down thereby. Under the old law, the investigation as to mesne profits was made in execution. Under the present Code, provision has been made in Or. 20, r. 12 for a preliminary decree directing enquiry and then for a final decree when the amount has been determined. Along with this, a special provision has been inserted in Or. 21, r. 42 to the effect that pending this enquiry, there can be attachment of the property of the judgment-debtor as in the case of an ordinary decree for the payment of money. It is clear that under the old law under which a similar provision existed, this attachment was made in execution and all the provisions relating to attachments in execution then applied. In my opinion, it is abundantly clear that the same is the position under the present law. As my learned brother has pointed out, if this position is not taken, then we have to hold that the legislature has failed to make provision for a number of matters for which provision is almost essential; whereas in analogous matters of attachment before judgment, elaborate provisions have been made, including a special provision that in the matter of claims the procedure shall be as in the case of claims after attachment in execution of decrees. This matter was considered in the case of Ramasami Iyer v. Vedambal Ammal(1), where the question arose as to whether an applicant under r. 42 of Or. 21 was entitled to a rateable distribution with other decree-holders under sec. 73 of the Code. It was there held that he was so entitled, and the reason given was that the proceedings were held to be proceedings in execution, that under the old law he had such right, and that unless it were so held he would not have that right under the present Code, and that there was no justification for a conclusion to that effect. I think it is clear, therefore, that an application for attachment under r. 42 is to be dealt with exactly as any application for attachment in execution of a decree and all appropriate provisions under Or. 21 of the Code in relation to the latter will apply to the former.
P.C