PROVINCE OF EAST PAKISTAN Versus MOHD. ABDUR RAZZAK AND OTHERS OPPOSITE
1. A. S. CHOWDHURY, J.‑ ---This revisional application is directed against an older made by Mr. R. K. Biswas, Subordinate Judge, Rajshahi, on 25‑11‑67, dismissing the Miscellaneous Case No. 26 of 1965 by which the objection raised by the Province of East Pakistan to the order of attachment of a sum of Rs. 25,725 lying in security was rejected and it arises in the following circum stances :‑
2. The learned Subordinate Judge by an order made on 27‑9‑62 in O. C. Suit No. 59 of 1962 attached the amount of Rs. 25,785 which was lying with the Executive Engineer, C. & B. Department Building Division 1, Rajshahi, in deposit to the credit of the judgment‑debtor Belayet Ali. No objection to the attachment order was filed until 30‑4‑65, although the order of attachment was received by the said Engineer on 29‑9‑62 learned Subordinate Judge directed the Executive Engineer to send the attached amount to the Court on 8‑7‑64 and on 16‑7‑64, Mr. S. H. Akand who described himself as the Executive Engineer, Rajshahi, Building Division No. I, sent a letter in reply stating that " the undersigned has the honour to intimate that the money attached by his Court cannot be paid to the Court as requested because of the fact that Government dues amounting to Rs. 45,240. (Rupees forty‑five thousand two hundred and forty) only is due from the contractor Mr. Belayet Ali Khan on account of penalty, etc. for non‑fulfilment of contract and the cost of excess consumption of materials".
3. The Court again directed the Executive Engineer to carry out its order for depositing the amount in Court and thereafter the Executive Engineer preferred an appeal to this Court. That appeal was allowed by an order made by this Court on 4‑7‑67 in F. M. A. 12 of 1966 and the Subordinate Judge was directed to proceed with the Execution Case after considering the objection to the attachment as raised by the Province of East Pakistan. This Court ordered that the learned Subordinate Judge would consider the objection only if the amount attached was sent to the Court as directed by that Court within three weeks from the date of the receipt of the records in that Court. This Court also observed:
4. "The learned Subordinate Judge has shown his great forbearance in not drawing proceeding for disobedience against the Executive Engineer."
5. It would appear that this Court did not take steps for disobedience in the matter as the Court concerned did not issue any notice to the Executive Engineer to show cause as to why he should not bi committed to prison or appropriately dealt with for contempt although its order was not carried out until the matter was brought to the notice of this Court by an appeal preferred by the Government itself. After the matter was remanded as stated above the learned Subordinate Judge rejected the objection. The point raised before him was that the amount was lying in deposit a security with the Government and as such it could not b attached under the law.
6. Mr. Nurul Haque Bhuiyan, learned Advocate appearing support of the rule obtained by the Government, submits that the amount deposited as security with the Government does no come within the expression "movable property not in possession of the judgment.‑debtor" occurring in sub‑rule (c) of rule 46, of Order XXI of the Code of Civil Procedure. Therefore, according to Mr. Bhuiyan the impugned order is illegal and in support of this contention, he places his reliance on a decision of the Bombay High Court in the case of Gajraj Sheokrandas v. Sir Hukamchand Sarupchand and another (A I R 1939 Bom. 90).
7. Mr. S. M. Huq, learned Advocate for the opposite‑party, however, submits that the case on which reliance has been placed by Mr. Bhuiyan did not take into consideration section 60 of the Code of Civil Procedure. In his contention money lying in deposit comes within the wide import of that section and is liable to be attached.
8. I now read the material part of the relevant provisions of section 60 of the Code itself:‑
(1) The following property is liable to attachment and sale in execution of a decree, namely, lands, houses or other buildings, goods, money, bank‑notes, cheques, bills of exchanger hundis, promissory notes, Government securities bonds or other securities for money, debts, share in a corporation and, save as hereinafter mentioned, all other saleable property, movable or immovable, belonging to the judgment‑debtor or over which, of the profits of which he has a disposing power which he may exercise for his own benefit, whether the same be held in the name of the judgment‑debtor or by another person in trust for him or on his behalf."
9. There is a proviso added to the section by which certain matters have been excluded from the operation of subsection (1) just quoted. In this long proviso no mention of any amount lying in security either with Government or anyone else is mentioned. It is, therefore, urged by the learned Advocate for the opposite party that since no exception has been made in the proviso, the money lying in security is included in view of the wide import of the word "money" occurring in subsection (1) of section 60. Mr. Bhuiyan frankly concedes that money lying in security has not been included within the exceptions enumerated in the proviso to the said section.
10. In the case of Province of West Bengal and the Province of East Bengal v. Banamali Sen and another (54 C W N 322 N), a Division Bench of the Calcutta High Court consisting of Das and Guha, JJ., reached the conclusion that security for costs deposited by an appellant was liable to attachment in execution of a decree. If an amount deposited in a Court as security for costs can be attached as was held in that case, we do not see why an amount deposited with the Government as a security for carrying out a contract properly cannot be attached. In that case Das, J., gave the following reasons for the conclusion reached by the Court:‑
11. "The effect of the security deposit as stated already is not to take away entirely the disposing power of the depositor. In spite of the fact that the deposit is earmarked for a specific purpose, the depositor still retains a disposing power which he may exercise for his benefit. The extent of the power is dependent on certain contingencies. The fact that G. P. Notes deposited was endorsed in the name of an officer of the Court did not affect the question. The word `property' is used in a wide sense and does not mean only proprietorship but includes any right or power in respect of the same. The effect of the attachment is merely to prevent private alienation and to subject the attached property to claims enforceable under the attachment."
12. We are in respectful agreement with the view expressed above for the Legislature has used the word `money' and an amount deposited as security does not cease to be money, nor such money has been excluded by the proviso added to the said section.
13. In the case of S. B. Das v. C. T. A. R. A. Muthia Chetty (56 I C 948), it was held that money deposited as security for the due performance and completion of a contract although liable to forfeiture, were debts due to the contractor until they became liable to be forfeited and were attachable in execution of a decree against contractor.
14. Mr. Huq relies on this case to show that it is applicable to the facts of the present case, inasmuch as a money deposited by the contractor for due performance was held to be attachable in execution of a decree passed against such a contractor, although this amount was liable to forfeiture. Mr. Bhuiyan, on the other hand submits that the amount was liable to be forfeited and he could if he wanted, forfeit it at any moment and on that ground a Court should not pass an order which would be infructuous in case right to forfeiture is exercised. We should at once make it clear that in view of the order of attachment already made in 1962, if any order of forfeiture is now made, the Executive Engineer or the authority concerned would be liable to be committed to prison for contempt of Court or to be dealt with in appropriate manner. In this case, we have already noticed with strong disapproval the conduct of the Executive Engineer concerned and we want to remind Mr. Bhuiyan that if any step for forfeiture is taken after the order of attachment, the Court concerned will be bound to take such steps as may be necessary for interference with the order of the Court. I should observe that in this case there has been forbearance of a nature which was not desirable and I think I should quote the following passage occurring in the judgment of Sir Thomas Ellis, J., in the case of crown v. Abdul Rashid Tarka Bagish (PLD 1950 Dacca):‑
15. "It is all the more necessary to deal with contempts firmly, for, it is now that the pattern will be set for the future deve lopment of the institutions of this country and it is of fundamental importance that the foundation be laid straight and solid so that the structure erected shall be stable. Any mistakes made now, an easy tolerance for what is wrong, may do incalculable future harm."
16. Therefore, the contention of Mr. Bhuiyan that the amount although under attachment can be forfeited at any moment cannot be entertained for such forfeiture is not possible under the law.
17. I would now read the material part of rule 46 of Order XXI of the Code:‑
18. "In the case of (a) a debt not secured by a negotiable instrument, (b) a share in the capital of a corporation, (c) other movable property not in the possession of the judgment‑debtor, except property deposited in, or in the custody of, any Court, the attachment shall be made by a written order prohibiting,‑
(i) in the case of the debt, the creditor, from recovering the debt and the debtor from making payment thereof until the further order of the Court,
(ii) in the case of the share, the person in whose name the share may be standing from transferring the same or receiving any dividend thereon,
(iii) in the case of the other movable property except as aforesaid, the person in possession of the same from giving it over to the judgment‑debtor."
19. It will appear from the admitted facts of the case that it would come under clause (c) of sub‑rule (1) of rule 46 of Order XXI, for the amount lying with the Executive Engineer as a security of the judgment‑debtor is movable property and it is not in possession of the judgment‑debtor. Therefore, in such a situation this amount comes within the expression "movable property not in the possession of the judgment‑debtor". The expression "movable property" has been defined in the General C Clauses Act which means all property which is not immovable. That being so, money is included therein. We are unable, speaking with great respect, to agree with the view expressed in A I R 1939 Born. 90 on which reliance has been placed by Mr. Bhuiyan, for in that case it was observed that such money would not come within the expression "movable property not in possession of the judgment‑debtor". The view taken in the decision was founded on the ground that the expression "movable property not in possession of the judgment‑debtor" means a property which may not be presently in possession of the judgment‑debtor but will be converted into a property possession of which may be recovered by a judgment‑debtor, I would, speaking again with great respect, say that the statute used the expression "not in possession of the judgment‑debtor" but does not add "although the judgment‑debtor is capable of recovering the possession".
20. The preponderance of authorities is in favour of the view expressed in 54 C W N 322 referred to above with which we indi cated our respectful agreement. This question also came to be considered by a Full Bench of the Allahabad High Court consisting of Sir Grimwood Mears, C. J., Sir Shah Muhammad Sulaiman, Boys, Banerji, Young, Sen and Niamatullah, JJ., in the case of Mahant Shantanand Gir v. Mahant Basudev anand Gir (52 All. 619). In that case Sulaiman, Banerji, Sen and Niamat ullah, JJ., observed:
21. " .If the decree‑holder desires to be cautious there is nothing ~in law to prevent him from applying to the Court for attaching the security as to prevent the judgment‑debtor from dealing with it personally any further. It is not only permis sible to decree‑holder to attach the security but he has a right to do so, subject always of course to the first charge credited on it, and the Court has no discretion to refuse his prayer.
22. It is true, the learned Judge said that it could be attached subject to the charge created on it. We are, however, concerned with the question as to whether or not such a security can be attached and the learned Subordinate Judge has done nothing more than passing an order of attachment.
23. In the result the rule is discharged with costs, and the impugned order dated 25‑11‑67 is affirmed.
24. The order of ad interim injunction is vacated.
25. Let the records be sent down expeditiously.
26. NURUL ISLAM, J. ‑I agree.
27. S. A. H.