SUPREME COURT OF INDIA

Before:- B.N. Kirpal and Ruma Pal, JJ.

Civil Appeal No. 1914 of 1981. D/d. 29.8.2000.

Firm R. S. Gopikishan Agrawal & Sons. - Petitioner

Versus

M/s Khandelwal Ferro Alloys Ltd. & Co. & Ors. - Respondents

Civil Procedure Code, 1908 Order 21 Rule 63 - Constitution of India, 1950, Article 136 - Suit decreed with mesne profits against respondent - Attachment of Manganese ore belonging to respondent 3 in execution proceedings - Under some agreement, ownership claimed by respondents no.1 - Pending objections, ore handed over to respondent no.1 against security - Objections succeeded - Dismissal of suit filed by decree holder - Special leave petition filed - Held, objector not a judgment debtor - Ore not existing on day of hearing of SLP - Thus, appeal has become infructuous as no possibility of proceeding against objectors even if appeal allowed - Appeal dismissed - Decree holder, granted liberty to revive case if bond executed by objector is alive.

[Para 6]

ORDER

1. With the passage of time, it appears that this appeal has become infructuous.

2. The appellant had obtained a decree for Rs. 2,28,000/- with costs and mesne profits against respondent no. 3. On an application for execution being filed, the executing court in April, 1964 ordered attachment of 3,220 tonnes of manganese ore which was stated to be belonging to respondent no. 3.

3. It seems that there was some agreement entered into by respondent no. 3 with respondent no. 2 and respondent no. 1 relating to the manganese ore. As a result thereof, respondent no. 1 filed objections before the executing court claiming ownership for the said manganese ore. During the pendency of these objections, under orders of the executing court, the manganese ore was handed over to respondent no.1 on bond being furnished by respondent no.2 on behalf of respondent no.1. This bond was furnished on 2nd May, 1964.

4. The objections of respondent no.1 succeeded on 5th May, 1965 whereupon the appellant herein filed a Special Suit No. 75/1965 under Order 21 Rule 63 for a declaration that the said manganese ore belonged to respondent no. 3 and not to respondent no. 1. The suit was dis- missed, appeal filed against the same, met with the same fate and this is an appeal by Special Leave against the judgment of the High Court.

5. The present proceedings arise in connection with the manganese ore which was extracted by respondent no. 3 and which was sought to be attached and sold in execution of the decree which had been obtained by the appellant against respondent no. 3. The goods which were sought to be attached were handed over to respondent no.1 on a bond being furnished. Therefore, as of today, admittedly the goods do not exist. Only thing which remained was the bond which was furnished to the executing court during the pendency of the objections which possibly provided that in the event of the objections being dismissed, the surety would pay the sum of Rs. 3,25,000/- to the appellant herein. The objections succeeded and in fact the subsequent proceedings initiated by the appellant herein, which has resulted in the present appeal, were also decided in favour of the respondents. There is no information available as of today as to whether the said bond which was furnished on 2nd May, 1964 has been kept alive or not.

6. As far as this Court is concerned, no interim orders were passed in relation to the bond. This means that even if the appellant was to succeed in this appeal in the absence of there being any bond in existence, the question of the appellant getting any relief against respondent nos. 1 and 2 would not arise. It is to be borne in mind that respondent nos. 1 and 2 are not judgment debtors and therefore it may not be possible for the appellant to proceed against them in the event of this appeal being allowed. We are, therefore, of the opinion that this appeal has become infructuous and is accordingly dismissed. If, however, it later transpires that the bond which had been furnished on 2nd May, 1964 has been kept alive, liberty is granted to the appellant to ask for the revival of this case. The dismissal of this appeal will not, in any way, prejudice the appellant's right against respondent no.3 if available.

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