1980 PLP 1851 (CLC)

O. XXI, r. 46/49 and Custom House Agents (Licensing) Rules, 1965-Execution of decree-Attachment-Security deposit with Customs Authorities-Not liable to be attached as a debt under O. XXI, r. 46, C. P. C.-[Attachment

Decree]. Gajrqj v. Hukam Chand A I R 1939 Born. 90 and In re : L. T. Pinto A I R 1941 Sind 193 rel. B. M. Bangash for Petitioner. A. C. Joshi for Respondent No.

1. Nemo for Respondent No.

2. Date of hearing : 25th November 1979. The respondent No. I obtained a money decree against respondent No. 2 in his personal capacity for arrears of rent etc. on 31-5-1967. The decree-Bolder then applied for execution of the decree on 18-8-67 vide -Execution Application No. 54/1967 in which a prayer for attachment of security amount deposited in the name of Sadiqeen Traders with the Collector of Customs, was made. By his objections dated 14-5-69 the Manager of the aforesaid firm of Sadiqeen Traders, the petitioner in this petition, objected to the attachment of the security deposit on the ground that the same was partnership property. However, by order dated 3-7-69 the executing Court dismissed the objections in the absence of the petitioner and ordered execution as prayed. Since the entire decretal amount was not satisfied in the aforesaid execution application, a Second Execution Application No. 48/1969 was instituted by the decree-holder, on 8-8-69. By order dated 10-1-70 the executing Court issued a prohibitory order attaching the security deposit in the name of the petitioner with the Collector of Customs. Consequently, on 15-1-1970 the petitioner appeared and filed an application under Order XXI, rules 59 and 58, C. P. C. objecting to the attachment of the security deposit on the ground that it was not liable to be attached and applied for the satisfaction of the decree as it was a partnership property. By the impaired order dated 26-11..1970 the learned Civil Judge First Class. Karachi dismissed the objections on the ground that the same objections were earlier dismissed by the Court in order dated 3-7-69 and, therefore, the matter was res judicata. The present revision is directed against the aforesaid order.

2. Mr. B. M. Bangash, learned counsel for the petitioner assailed the order firstly on the contention that the earlier order dismissing the objections of the petitioner was passed in its absence and would, therefore, not operate as res judicata under section 11, C. P. C. as erroneously held by the Court below. Mr. Josh did not seriously challenge the contention and very fairly conceded that he will not be in a position to support the impugned order on this point. Further it seems that no evidence was recorded by the execut ing Court and the order dated 3-7-69 was passed in default of appearance on the part of the petitioner. Consequently. the Court was not competent -to adjudicate the matter and give a finding on the issues arising between the parties. However, the matter does not stand concluded and the question is whether the amount in question was partnership property and was liable to be attached in execution. 3, It is not disputed that the decree was passed against respondent No. 2 in his personal capacity and that the present petitioner was not a party to the suit. The evidence adduced by the petitioner before the executing Court also clearly shows that the amount in question was deposited in the name of the petitioner Sadiqeen Traders with the Collector of Customs as a deposit for issue of a liceence under the Custom House Agents (licensing) Rules, 1965. Rule 9 of the said Rules lays down that an applicant approved for the grant of a licence shall, within 15 days of the communication to him of such approval, utter alia, deposit with the Chief Customs Officer, as security for his faithful behaviour as regards the Customs Regulations and Officers, the sum of Rs. 10,000 and also execute a bond in Form C, Learned counsel for the petitioner has referred to the deposition of Syed Ajmal Hussain who stated that Messrs Sadiqeen Traders is a partnership concern of which the said witness and respondent No. 2 were the partners. It support of this fact certified copy of the extract from the Register of Firms was produced. Also the licence in the name of the petitioner and other documents have been produced which clearly show that the petitioner is a partnership- concern and the deposit in question was made in connection with the licence issued in its name. The decree-holder has himself produced in his evidence a certificate from the Deputy Collector of Customs (Preventive) and Licensing Authority for Custom House Agents (Exh. 10). This certificate clearly establishes that originally respondent No. 2 was the sole proprietor of the petitioner concern, but on 26-4-1962 Mr. Ajmal Hussain was allowed to join as 4 partner of the said firm: There is, therefore, sufficient evidence that the deposit amount was held by the Collector of Customs in the account of the petitioner/partner ship concern. It was urged by the learned counsel for the petitioner that therefore, this amount was not : liable to be attached in view of the bar contained in sub-rule (1) of rule 49 of Order XXI, C. P. C. which is in the following terms "Save" otherwise provided by this rule the property belonging to a partnership shall not be attached or sold in execution of a decree against the partners in the firm as such." If it is intended to proceed against a partner in respect of the interest of such partner in the partnership property and profits in execution of a decree the proper procedure was as provided in sub-rule (2) of Order XXI, rule 49, C. P. C. but no such prayer was made in the execution application. In Syed Umar v. Tahir Ali (P1 D 1978 Kar. 631) to which I was a party, it was similarly held that partnership property cannot be attached in execution of a decree against a individual partner as such. The Court below was, therefore, wholly in repelling the objection advanced by the petitioner. The learned cause for the petitioner has further forcefully contended that in any case the amount held by the Collector of Customs as security deposit was not a debt liable to attachment under Order XXI, rule 46, C. P. C. In this behalf a reference was made to rule 23 of the Custom House Agents (Licensing) Rules, 1965 which reads as under : - "The security deposit of a licence shall not become re-payable as a result of the revocation or surrender of his licence until after six months from the date of such revocation or surrender." Further rule 9 under which the deposit was made stipulates that the deposit would ensure for the benefit of the Government as a security for faithful behaviour of the licensee as regards the Customs Regulations and the Officers. It is well established that a `debt' within the meaning of Rules 46 o Order XXI, C. P. C. should be such in which the judgment-debtor must have a vested interest in present in the amount and the debt should be a perfecta and an existing debt. That is to say that the money should have become due thought it may be payable in future. Learned counsel for the petitioner relied on Gajrat v. Hukam Chand (A I R 1939 Bom. 90) in which it was held that the deposition made by a member of an association which is subject to forfeiture and lien and is within the absolute control of the Association is not liable to attach ment. It was held that such deposit did not constitute a debt, but was money re-payable upon certain contingencies and until the debtor ceased to be a member his rights in the deposit could not be ascertained, nor was the interest of the member in such deposit "movable property not in the possession of the judgment-debtor" within the meaning of Order XXI, rule 46, sub rule (c). Reference was also made to In re : L. T. Pinto (A I R 1941 Sind 193 ) where it was held that the money deposited by the licensee with the Government of India in con nection with his licence for the manufacture of salt cannot be attached in execution of a decree against the licencee. Respectfully agreeing with then view held in the cited decisions, I am clearly of the opinion that the deposit with the Customs Authorities was not liable to be attached as a debt under order XXI, rule 46, C. P. C.

4. Mr. A. C. Joshi was unable to meet these contentions and or4y urged that the amount now kept in deposit with the executing Court may be ordered to be retained by the Court until the decree-holder files fresh application for execution in the proper manner as required by law. However, this request is opposed by the learned counsel for the petitioner, who has pointed out that by adopting such procedure the interests of the petitioner will be seriously jeopardized as their licence is liable to be cancelled. In any case no justifica tion is made out for passing such an order.

5. For the foregoing reasons, I allow this revision and set aide the order passed by the Court below dated 26-11-1970. The result is that the objection of the petitioner is upheld and the decree cannot be executed against the security deposit of the petitioner. 1n the circumstances, the parties aril left to bear their own costs. M. A. K. Revision allowed,