HAJEE MOHOMMED METHARU Vs. JOSEPH ACHAMMA
LAWS(KER)-1955-8-15
HIGH COURT OF KERALA
Decided on August 05,1955

HAJEE MOHOMMED METHARU Appellant
VERSUS
JOSEPH ACHAMMA. Respondents

JUDGEMENT

- (1.) THE only question for decision in this second appeal is whether execution is barred by limitation or not. THE lower appellate court has held that there is no bar of limitation and remanded the case to the trial court for consideration of certain other objections raised in execution by defendant 17. Defendant 17 has, therefore, filed this second appeal contending that execution is barred by limitation.
(2.) THE decree that is sought to be executed was passed on 10. 6. 1108. In pursuance of an execution petition dated 26. 5. 1109 certain properties lying within the jurisdiction of the Kottayam Munsiff's Court were attached in execution of it on 3. 10. 1109 and some of those properties were also sold in court auction on 17. 7. 1111. But this sale was subsequently set aside in karkadagom 1114 and the case posted to 19. 2. 1115 for the decree-holder to take further steps. On 19. 2. 1115 the decree-holder filed a petition stating that he was filing an appeal against the order setting aside the sale and praying that the execution petition might, therefore, be struck off keeping the attachment alive and permitting him to take further steps after the decision of the appeal. THEreupon the court passed an order on the same day on the execution petition of 26. 5. 1109, reading: "dismissed. Attachment retained". After this order which was passed by the Kottayam Munsiff's Court a new munsiff's Court was established at Ettumanoor, and with the establishment of that court some of the properties attached in 1109 came to be within the territorial jurisdiction of the Ettumanoor Munsiff's Court, and some continued to be within the territorial jurisdiction of the Kottayam Munsiff's Court. On 18. 12. 1118, after the dismissal of the appeal which he had filed against the order setting aside the sale, the decree-holder filed another execution petition in the Kottayam Munsiff's Court praying that he might be allowed to sell such of the properties attached on 3. 10. 1109 as were lying within the jurisdiction of the Kottayam Munsiff's Court and that if the decree amount was not realised by the sale of those properties the case might be sent over to the other court, within the jurisdiction of which the remaining attached properties were lying, so as to enable him to sell those properties also. THE sale of the kottayam properties which ultimately took place in pursuance of this execution petition, also was set aside on 17. 8. 1124. THEn the case was transferred to the ettumanoor Munsiff's Court in pursuance of another application, and in the ettumanoor Munsiff's Court the decree-holder filed an execution petition on 31. 11. 1124 praying for sale of the attached properties which were lying within the jurisdiction of that court. Defendant 17 objected to this execution petition contending that the attachment on 3. 10. 1109 must be deemed to have ceased with the order of 19. 2. 1115 and that the execution petition of 31. 11. 1124 must, therefore, be treated as a fresh application made twelve years after the date of the decree. This contention was not accepted by either of the courts below. Hence this second appeal. The contention that the attachment of 3. 10. 1109 has ceased with the order of 19. 2. 1115 is based on O. XXI R. 55 of the Travancore civil Procedure Code of 1110, as it stood before the amendment of 10. 6. 1115. That rule provided: "where any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application, the attachment shall cease". By the amendment of 10. 6. 1115, a clause, reading "unless the court expressly directs that it shall continue in force" has been added to the last sentence of the Rule, after the words "the attachment shall cease". The effect of this amendment is that after 10. 6. 1115 the court could by an express order keep alive the attachment when it dismissed an execution petition for the decree-holder's default. But it is contended that as the Rule stood before the amendment the court was not competent to keep alive the attachment when it dismissed the execution petition, and that the order of 19. 2. 1115 in this case is, therefore, null and void to the extent it keeps alive the attachment. With the dismissal of the execution petition of 1109 on 19. 2. 1115, it is urged, the attachment of 3. 10. 1109 has automatically terminated. O. XXI R. 57 of the Indian C. P. C. corresponds to O. XXI R. 55 of the Travancore Civil Procedure Code, and there is no difference between O. XXI R. 57 of the Indian Civil Procedure Code and O. XXI r. 55 of the Travancore Civil Procedure Code as it stood before the amendment of 10. 6. 1115. Reliance is placed in support of the appellant's contention on the decisions under XXI R. 57 of the Indian Civil Procedure Code in Seshayya v. Sattiraju, A. I. R. 1930 Madras 414, Nanu Mal v. Amar Nath, A. I. R. 1938 Lahore 590, and Gudihal v. Savanur, A. I. R. 1941 Bombay 395. On the other hand the respondent's counsel relies upon the decisions in Mulay v. Balgobind, A. I. R. 1925 Allahabad 456, and Babarak Hussian v. Bimal Prasad I. L. R. 44 Allahabad 274. Following an earlier case it was held in Babarak Hussian v. Bimal Prasad, that an order directing the attachment to subsist in the case of a default on the part of the decree-holder would be an improper order, but it would not be a nullity and would be binding on the parties to it. All the cases relied upon by the appellant's counsel were cases in which the execution petition was either dismissed or struck off on account of the default of the decree-holder. It is clear from O. XXI, R. 55, Travancore C. P. C. (O. XXI, R. 57, Indian C. P. C.) that the dismissal which would under that rule cause the termination of an attachment is dismissal brought about by the decree-holder's default. That rule does not apply to dismissals for other reasons. The effect of orders such as "dismissed, "rejected", and "struck off", passed for purposes of statistics, and not by reason of the decree-holders' default or of the judicial disposal of the execution petition, is merely to adjourn the execution petition sine die; and an execution petition so dismissed, rejected or struck off has to be deemed as pending even after the order and capable of being revived or continued by the decree-holder at a later stage. Whether the order is one having only the effect of adjourning the execution proceedings sine die or whether it is one judicially disposing of the execution petition, has to be ascertained from the facts and circumstances of each case. If the order of 19. 2. 1115 was not a dismissal for the default of the decree-holder there is nothing in O. XXI R. 55 which would render the order for the retention or continuance of the attachment invalid. In regard to a similar case, the madras High Court has said in Murugappa v. Desappa I. L. R. 1950 Madras 779: "ultimately, we have to determine, on the circumstances and facts of the case before us, what was intended and what was expressed by the learned judge when he passed the order. In our opinion it is clear that the learned judge did not dismiss the application. Still less did he indicate that there was default on the part of the decree-holder which deserved a dismissal. On the other hand, the opening words of the order, keeping the attachment alive, make it abundantly clear that the judge did not intend to dismiss the application and thereby to raise the attachment. What he did was to keep the attachment alive and to permit the decree-holder to apply for the proclamation of sale of the attached properties by means of a fresh petition. Once we hold that there was no dismissal of the execution petition for the default of the decree-holder, the law is clear that the attachment would continue, especially when the judge himself directed that it should continue, till the decree was fully satisfied. It follows therefore that on the date of the sale in favour of defendant 6 i. e. , on 12th December 1942, there was a valid attachment subsisting, in pursuance of which eventually the Court sale took place and the plaintiff became the purchaser. We agree with the learned judge's finding on this point. " (Vide page 784 ). In the present case there would have been no necessity for the decree-holder to continue the execution proceedings if the appeal that he was filing against the order setting aside the sale were to be allowed. The main prayer in the petition of 19. 2. 1115 was that the decree-holder might be allowed to continue the execution proceedings after the disposal of the appeal, and to keep alive the attachment so that he could continue the execution proceedings after the disposal of the appeal if it was then found necessary. When the court allowed that petition and dismissed the execution petition in pursuance of it keeping alive the attachment the substance and effect of the order on the execution petition was to adjourn the execution proceedings sine die so that the decree-holder might prosecute the appeal and obviate the necessity to continue the execution proceedings and need continue the proceedings only in case the appeal went against him. It was not on account of the decree-holder's default that the court dismissed the petition. It did so only for purposes of statistics, because the execution petition had to be adjourned sine die on account of the appeal against the order setting aside the previous execution sale. The attachment of 3. 10. 1109 cannot therefore be deemed to have ceased with the order of 19. 2. 1115, and must be held to be still subsisting. In this view the execution petition of 25. 6. 09 is pending so far as the properties attached within the jurisdiction of the ettumanoor Munsiff's Court are concerned and the plea of limitation is wholly unsustainable so far as the prayer for the sale of those properties is concerned. The order of the lower appellate court is therefore confirmed and the second appeal is dismissed with costs.;


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