1983 PLP 284 (CLC)

Mr. A. I; Chundrigar relying on section 39, subsection (10) of the Ordinance read with Order XXXVIII, rule 7, C. P. C. submitted that the final order passed on 21‑1‑1981, could be executed without any application. In order to appreciate this contention it may be convenient to reproduce herein below the provisions of section 39, subsection (10) of the Ordinance and Order XXXVIII, rule 7, C. P. C. Section 39: subsection (10)‑‑ (10) An order under this section for the attachment or sale of property shall be carried into effect as far as may be in the manner provided in the Code of Civil Procedure 1908, for the attachment or sale of property in execution of, a decree as if the Bank were the decree holder. Order XXXVIII, rule 7, C. P. C.‑ (7) Save as otherwise expressly provided the attachment shall be made in the manner provided for the attachment of property in execution of a decree." A perusal of the provisions of section 39, subsection (10) of the Ordinance shows that an order for the attachment or sale of the property has to be executed in the manner provided in the Code of Civil Procedure for the attachment or sale of the property in execution of a decree. In the present case by the order dated 21‑1‑1980, it was ordered that the property mentioned in paragraph 14 (a) (i) of the petition be sold. It was further provided that in case the said property could not be sold or sale proceeds were insufficient to satisfy the petitioner's claim, the petitioner would be entitled to apply subsequently for sale of other properties mentioned in sub‑paragraphs (ii), (iii) and (iv) of paragraph 14 (a) of the petition. Accordingly, the petitioner as stated before has filed a statement under Order XXI, rule 66, C. P. C. The Office Objection that the petitioner should have filed an application for execution of the order is, in my opinion, misconceived, for under the provisions of section 39 (10) of the Ordinance what is provided is not that the order as decree shall be executed in the manner provided in the Code of Civil Procedure, that is by making an application under Order XXI, rule 11, thereof, but that an order for attachment or sale of the property shall be carried into effect, as far as may be in the manner provided in the Code of Civil Procedure. So far as the sale of property is concerned the general provisions in accordance with which the sale is to be carried are contained in Order XXI, rules 64 to 73, C. P. C. As regards immovable property in particular the provisions are contained in rules 82 to

103. Therefore, if any applica tion is required under these rules that may have to be made. However, since an order for sale of the property was already passed, no application as required under rule 66 was necessary. The petitioner was required only to give particulars of the property ordered to be sold and they were accordingly given in the statement filed by it. So far as attachment of property is con cerned, an ad interim order of attachment of property is to be made, under the provisions of section 39, subsection (3) read with subsection (10) of the Ordinance keeping in view the provisions of Order XXXVi1I, rule 7, C. P. C. to which reference has been made by Mr. Chundrigar, in the manner provided under Order XXI, rules 41 to 54, C. P. C. And on cause being shown against the claim of the Bank and on completing investigation under subsection (8) of section 39 of the Ordinance the District Judge is required under subsec tion (9) to pass an order‑ (a) confirming the order of attachment or directing the sale of the attached property, or (b) varying the order of attachment so as to release a portion of the property from attachment and directing the sale of the remainder of the attached property, or (c) releasing the property from attachment, if he is satisfied that it is not necessary in the interests of the Bank to retain it under attach ment, or (d) confirming or vacating the injunction, or transferring or refusing to transfer the management of the concern to the Bank. Provided that when making any order under clause (e), the District Judge may make such further orders as he thinks necessary to protect the interests of the Bank and may apportion the cost of the proceedings in such manner as he thinks fit: Provided further that unless the Bank intimates to the District Judge that it will not appeal against any order releasing any property from attachment such order shall not be executed until the expiry of the period mentioned in subsection (11), or if an appeal is preferred, unless the High Court otherwise directs, until the appeal is disposed of" I am, therefore, of the view that no execution application under Order XXI, rule 11, C. P. C. is envisaged for sale of the attached property by the provisions of section 39 of the Ordinance. Such an order could be executed without an application under Order XXI, rule 11, C. P. C. I, therefore, accept the appeal and set aside the order of the Additional Registrar leaving the parties to bear their own costs. S. Q. Appeal accepted.