Decided on August 12,1969



- (1.)This civil miscellaneous second appeal arises out of proceedings objected to the sale of the properties in the execution petition presented on 9/07/1965 on the ground that the attachment effect earlier in a prior execution petition cannot be deemed to be subsisting. The order passed on the prior execution petition on 24/06/1960 was in these terms: "E. P. dismissed as execution is stayed." The question, therefore, is whether, as a result of the order made on 24/06/1960, the attachment of the property can be said to have been terminated.
(2.)The answer depends upon the construction of the provisions of Rule 57 of Order 21. The contention urged for the appellant before me is that it is incumbent on the Court when it dismisses or adjourns a proceedings in execution to a future date to state whether the attachment continues or ceases. The later part of sub-rule (1) of R.57 applies to a case where an execution petition is terminated for the decree-holders default. In that contingency, no question can arise as to the continuance of the attachment. But we are concerned here with a case where the execution could not be proceed with by reason of orders of stay made by a superior Court. Even in a case of this description. Mr. Krishna Rao for the appellant submits that in the absence of a specific order of the Court, the attachment must be deemed to have come to an end. The emphasis laid by the learned counsel is on the need for a specific order of the Court. According to him, if the Court does not give a direction as to the continuance of the attachment the sequel is that the attachment comes to an end. I am unable to accept this contention as sound.
(3.)It is true that the expression "shall" is used in Rule 57 with reference to orders that are directed to be made in respect of both categories of cases i.e., cases where the inability of the Court to proceed with execution arises by reason of the decree-holders default, and also to cases that fall in the other category. As pointed out by me in both cases, the expression "shall is used and a duty is case on the court to give a direction. Notwithstanding the use of the expression "shall" in both cases, it seems to me that the rule-making authority did maintain a distinction between the cases of the one description and the cases of the other. The intention I manifest that the penalty of the discontinuance of attachment is intended to be made ipso facto applicable only to cases of default of the decree-holders. If that be the intention it is obvious that in cases where the execution proceedings come to an end for reasons other than the decree-holders default, the compulsion or inevitability for the enforcement of the penalty does not arise. Having regard to the legislative intention. I think that the reasonable constriction that is to be placed upon the provision is that where the Court is unable to proceed with execution for causes not attributable to the decree-holders default, the penal provision of discontinuance of the attachment is not attracted.

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