Bangladesh V. Anil Ranjan Choudhury and ors 5 BLD (HCD) 1985 105

Facts in Brief

In a auction, the opposite party no.1 purchased the attached properties at the highest bid and the sale was confirmed on 19-11-1981. The decree holder as well participated in the auction but failed to purchase the machineries.

The auction purchaser opposite party no. 1 applied to the sub-ordinate judge for issuance of writ of delivery of possession of the machineries. The writ of possession having returned unserved he filed an application on 27-12-1982 for issuance of writ of delivery of possession upon the petitioner the Add. Deputy Comm. (Revenue) Noakhali and to hand over possession of them to the auction purchaser and process were accordingly issued to the Deputy Comm. Thereafter Add. Deputy Comm. Filed an objection against the said application for issuance of writ for the delivery of possession of the machineries to the auction purchaser opposite party no .1. The learned sub-ordinate judge upon hearing the objection reject it. The Add. Deputy Commissioner moved this court.

Issues

Whether the machineries purchased by the auction purchaser are moveable properties or not.

Whether it was an abandoned property or not.

Whether the auction purchaser opposite party no. 1 is entitled to the machineries or not.

Rule of Law 

Section 3 of the Transfer of Property Act, 1882 putting emphasis on “immovable property” read with section 3(25) of the General Clauses Act, 1897.

Cases referred

Nalini Kanta Bhattacharjee v. Mohan Chand Biswas AIR 1960 Cal. 331

Application to the Facts

The auction purchaser opposite party no.1 purchased attached properties including machineries among those. But failed to purchase the machineries .The learned Sub-ordinate judge decreed upon the Add. Deputy Commissioner to hand over the possession the auction purchaser .Being aggrieved the petitioner came to the HCD.

It was contended by the appellant that the machineries as described in the execution are immovable properties as defined in s-3 of the Transfer of Property Act, 1882 as well as in s-3(25) of the General Clauses Act, 1897.

“Immovable property” does not include standing timber, growing crops, or grass. 

Now the application under order 21 of rule 79 of C.P.C. which are applicable only in the case of movable property.

The auction purchase opposite party no. 1 claimed the transfer of machineries as movable properties which he purchased with the attached properties at the highest bid in the auction. It was relied on the case of Nalini Kanta Bhattacharjee v. Mohan Chand Biswas .

In the instant case the tenant judgment was running a mill in the premises and installed the machineries there. When the tenant installed the machineries in the named premises it will be presumed that they had installed them with the intention of removing them whenever they chose to vacate the premises. Mill machineries are mounted and festered to earth with brick and cements or bolts and nuts in order to prevent machineries from vibrating and for their proper running. The machineries cannot be said to be a permanent fixture of the land or premises to assume the character of an immovable property. The tenant did not fixed the machineries to make them as a part of the premises or the building in which these have been installed.   

Decision

The learned judges of the HCD held that the executing court did not commit any error of law in occasioning a failure of justice in attaching the machineries as movable property and issuing notices and process to the petitioner under order 21 rule 79 of C.P.C for delivery of machineries to the auction purchaser and rejecting the auction of the petitioner.

Conclusion

In considering the purpose and intention of the tenant it is proved that machineries were not immovable claimed by the appellant but movable and it is possible to transfer to the respondent.