K. Govindarajan, J. - (1.) The appellant filed a suit in O.S. No. 870 of 1973 on the file of District Munsif Court, Kallakurichi which was subsequently transferred to District Munsif Court, Thirukkovilur and renumbered as O.S. No. 1007 of 1974. Pending suit the properties of the second respondent was attached in 1973 and the attachment was made absolute on 22.7.1973. The suit was decreed on 7.8.1978. Pursuant to the decree, E.P. was filed in the year 1979. Since part of the payment was made, the said E.P. was dismissed on 15.11.1979.
(2.) In the meanwhile the first respondent purchased the attached properties on 5.6.1980 and 27.6.1983. Thereafter the petitioner filed the present E.P. in 1983 to seal the property. In the meanwhile the first respondent filed E.A. No. 710 of 1984 to raise the attachment on the basis of his purchase of the properties. The trial court dismissed the petition insofar as it relates to half share and allowed the petition with respect to the another half share on the basis that judgment -debtor's son one Rajendiran is entitled to the same. Aggrieved against the same, the first respondent has filed an appeal A.S. No. 24 of 1989 on the file of Sub -Court, Cuddalore. The learned Subordinate Judge, accepting the case of the respondent allowed the appeal. Aggrieved against the same this appeal is filed.
(3.) The abovesaid facts are not in dispute. The Lower Appellate Court has allowed the appeal on the basis that as the E,P. was dismissed on 5.11.1979, the attachment effected deem to have been terminated as the Execution Court did not mention that such attachment will continue. So, since no attachment was there, the purchase of the first respondent cannot be questioned. On the date of the filing of the present E.P. the first respondent had become owner of the property and so it cannot be brought for sale. Admittedly the attachment was made in 1973. So under the provisions of the Code of Civil Procedure (Amendment) Act, 1976 the provisions of Order 21, Rule 57 as amended or as the case may be substituted or inserted to the Sec. 72 of the Act shall not apply to or affect any of the attachment subsisting immediately before the commencement of said Sec. 72. In view of the abovesaid specific provision we have to look into only the Order 21, Rule 57 unamended for the purpose of the present case. The unamended Rule 57 reads as follows: (i) Where any property has been attached in execution of a decree and the court hearing the execution application either dismisses it or adjourns the proceeding to a future date, it shall state whether the attachment continues or ceases: Provided that when the court dismisses such an application by reason of the decree -holder's default, the order shall state that the attachment do cease. According to the said Rule unless it is stated in the order of dismissal of E.P. the attachment do not continue the attachment shall continue. In support of this the learned Counsel for the petitioner relied on judgment of Division Bench of our High Court reported in Dunna Venkata Rao v/s. Sree Rajah Saheb Maharban I Dostan Sree Rajah Rao Venkatakumaramahipathi Surya Rao Bahadur Garu and Anr., 1949 M.L.J. 328. The Division Bench considering the said provision held as follows: The language of the clause clearly does not make it a condition precedent for the termination of the attachment that the Court should make an order. If merely directs the court to state the consequence of the dismissal, that is, the termination of the attachment. It is the dismissal by reason of the decree -holder's default that brings about the termination of the attachment, and the Court is merely directed to state in the other that consequence. If the Court omitted to state so, it would not prevent the attachment from coming to an end. It may be a difficult question to answer as to what should happen if the Court omits to state whether the attachment continues or ceases when the application is dismissed or adjourned as contemplated in the body of the clause. An attachment, it has to be mentioned, does not otherwise cease unless there was a satisfaction or adjustment of a decree or sale of the property or a decree was set aside or attachment was withdrawn or abandoned, and in the case of attachment before judgment the suit was dismissed. For the determination of the attachment in cases not covered by the provision ordinarily an order of the court would be necessary, and the omission to state whether the attachment continues or ceases would probably result in the continuance of the attachment; but when by reason of the decree -holder's default the application was dismissed, the attachment undoubtedly ceases whether there was or was not an order of the Court stating the consequence. That is the effect of the clause. In this case, it is not in dispute that the execution petition filed in 1979 was dismissed only due to part -payment of the money by the judgment -debtor and not due to the default of the decree -holder. So, it cannot be said that on termination of execution proceedings, the attachment effected earlier ceases automatically. The lower court has not properly appreciated the above provisions and the scope of Order 21, Rule 57 of the Code.;