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Annapurna Patrani And Others v. Lakshmana Kara And Another.
Summary of Opinion
Factual and Procedural Background
The respondent obtained a simple money decree and execution was initiated against a property which was attached during the execution process. The executing Court later dismissed the petition for default because the sale papers and the encumbrance certificate had not been filed. While these proceedings were in flux, the appellant purchased the attached property on 10 May 1941 for Rs. 4,500. Subsequently, on 28 January 1943, the decision of the executing Court was reversed and execution proceeded. Two questions were presented on appeal: (1) whether allowing the appeal automatically set aside the consequential order raising the attachment, and (2) whether, even if it did, that would affect the appellant's purchase made at a time when no attachment was subsisting. These points were decided against the appellant by Panchapakesa Aiyar J. in the second appeal, who granted a certificate, and the issues were again argued in this Letters Patent appeal.
Legal Issues Presented
- Whether, upon allowing the appeal (which set aside the dismissal for default), the consequential order raising the attachment was automatically set aside.
- If the consequential order raising the attachment was automatically set aside, whether that would affect the transaction (the appellant's purchase on 10 May 1941) entered into at a time when, it was contended, no attachment was subsisting.
Arguments of the Parties
Appellant's Arguments
- The appellant relied on analogies with attachments in proceedings under Order 21, Rule 63 and Order 38, Rule 9 of the Civil Procedure Code (Civil P.C.), arguing that differences in wording between these provisions are material to the effect of appellate orders on attachments.
- It was conceded (by submissions considered in argument) that in the class of cases under Order 21, Rule 63 a claim suit decreeing the claim would restore the original attachment and render void interim alienations, but it was argued that those cases are distinguishable from the present one.
- The appellant relied specifically on Patringa Koer v. Madhabanand Ram (12 I. C. 65 : 14 C. L. J. 476) to contend that an appellate decree reviving attachment might operate as between decree-holder and judgment-debtor but would not revive the attachment as against a third party who had acquired in the interim.
Countervailing Authorities and Positions Noted by the Court
- The court reviewed a substantial body of authority (including decisions from the Calcutta High Court and Full Benches) that take the view that attachments before judgment, when validly ended by dismissal for default, are not automatically re-imposed on a subsequent decree; these authorities were considered and contrasted with the appellant's submissions.
- The court also considered Full Bench decisions of this Court and other decisions which supported the contrary proposition — namely, that where a dismissal for default is set aside (or reversed on appeal), ancillary or interlocutory orders, including attachments, are restored and, in some authorities, relate back to the original date, thereby invalidating interim alienations.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Sasirama Kumari v. Meherban Khan, 9 I. C. 918 : (13 C. L. J. 243) | Authority underlying Calcutta decisions that a reversing appellate order would not automatically re-impose an attachment (analysis included reference to American decisions). | The court noted that several Calcutta decisions follow the analysis in this case; it was discussed as part of the body of authority that the court considered in contrasting views on automatic revival of attachments. |
| Pindi v. U Thaw Ma, A.I.R. (18) 1931 Rang. 281 : (9 Rang. 472) | Decision following the Calcutta line that reversing an appellate order does not automatically re-impose attachment. | Noted as following Calcutta decisions; cited to show existence of authorities to the effect that appellate reversal does not necessarily restore attachments automatically. |
| Balaraju Chettiar v. Masilamani Pillai, 53 Mad. 334 : A.I.R. (17) 1930 Mad. 514 (Full Bench) | Full Bench conclusion that the consensus of authority is that an attachment before judgment ceases automatically when the suit is dismissed and would require strong reasons to hold otherwise. | The court treated this Full Bench as having come to a similar conclusion and quoted Pakenham Walsh J.'s emphasis on the consensus of authority; used as a significant authority in the debate over whether interlocutory orders are revived. |
| Namagiri Ammal v. Muthuvelappa Goundan, 56 M.L.J. 70 : A.I.R. (15) 1928 Mad. 940 | Authority containing remarks (by Phillips and Devadas JJ.) that interlocutory orders would be revived when a dismissal is set aside. | Quoted and discussed; Balaraju criticized some remarks in this case, and later Full Bench treatment was contrasted with other authorities. |
| Veerasami v. Ramanna, 58 Mad. 721 : A.I.R. (22) 1935 Mad. 365 (Full Bench) | Full Bench that considered some remarks of Pakenham Walsh J. to be obiter and took a more favourable view of the position that interlocutory orders may be revived when a dismissal is set aside. | The court observed that Veerasami weakened the force of Balaraju by treating some earlier remarks as obiter and expressly considered the question of revival of interlocutory orders more favourably. |
| Saranatha Iyengar v. Muthiah Moopanar, 65 M. L. J. 844 : A.I.R. (21) 1934 Mad. 49 | Decision holding that where a suit dismissed for default was restored to the file, in absence of anything against that view, the suit and incidental matters (including interlocutory applications) were restored to file. | The court recorded that the Full Bench approved this view and cited it as supporting restoration of ancillary matters on restoration of a suit. |
| Jia Bai v. Joharmull, A.I.R. (19) 1932 Cal. 858 : (59 Cal. 1450) | Direct authority from Calcutta that ancillary orders should be restored when a dismissal is set aside. | The court noted that Jia Bai was approved by the Full Bench and used it to support the proposition that ancillary orders are restored on restoration of the suit. |
| Patringa Koer v. Madhabanand Ram, 12 I. C. 65 : 14 C. L. J. 476 | Case relied on by appellant to contend that revival of attachment on appeal might operate between decree-holder and judgment-debtor but not against third parties who acquired in the interim. | The court considered this authority relied on by the appellant but expressed inability to accept how an attachment could be revived only as between decree-holder and judgment-debtor; the court found the reasoning unsatisfactory for limiting revival in that manner. |
| Gopal Prasad v. Kasinath, 42 ALL. 39 : A.I.R. (7) 1920 All. 356 | Authority for the view that a High Court order restoring an attachment would relate back to the date when the attachment was first made and would render invalid any alienation in the interim. | Appealed to by the court as supporting the view that a restoration order can relate back and invalidate interim transfers; used to uphold the consequence that revived attachments can affect third-party acquisitions. |
| Muhammad Warris v. Pitambur Sen, 21 W. E. 435 | Earlier authority followed by Gopal Prasad supporting relation-back principle. | Noted as part of the line of authorities followed in Gopal Prasad that the court relied on for the relation-back principle. |
| Bonomali Rai v. Prosunno Narain, 23 All. 829 | Authority in the same line as Gopal Prasad regarding the effect of restoration on interim alienations. | Included as one of the precedents in the group of cases cited for the principle that a restored attachment may relate back and invalidate interim alienations. |
| Ramchandra Marwari v. Mudeshwar Singh, 33 Cal. 1158 : 10 C. W. N. 978 | Part of the line of Calcutta and allied authorities affirming relation-back effect of restored attachments. | Grouped with other authorities to support the proposition that attachments, when rightly restored, may relate back to the original attachment date. |
| Ali Ahmed Khan v. Bansidhar, 6 A. L. J. 434 : 31 All. 367 | Another authority cited in support of relation-back and invalidation of interim alienations. | Referred to as part of the consistent line of decisions supporting relation-back effect. |
| Najmunnessa Bibi v. Noohiruddin Sardar, 51 Cal. 548 : A.I.R. (11) 1924 Cal. 744 | Statement by Rankin J. that if an attachment is wrongly released and later the right to attach is established, the attachment will relate back to when it was made; and that if an attachment validly ends, a subsequent attachment cannot affect interests validly created meanwhile. | Quoted by the court to support the broad principle that wrongful release followed by judicial vindication results in relation-back, and as reinforcing the court's acceptance of a wide application of the principle that ancillary orders are restored. |
Court's Reasoning and Analysis
The court proceeded by examining the competing lines of authority and the statutory context rather than relying on any single, directly on-point precedent. It observed that no decision directly addressed the exact point but that counsel had advanced arguments by analogy to attachments under Order 21, Rule 63 and Order 38, Rule 9, Civil P. C. The court acknowledged that under the class of cases governed by Order 21, Rule 63, a claim suit decreeing the claimant would have the effect of restoring the original attachment and rendering void interim alienations; counsel sought to distinguish those cases from the present situation.
The court next reviewed a substantial body of decisions (including Calcutta decisions and Full Bench decisions of this Court) which were divided. Some authorities held that an attachment before judgment ceases automatically when a suit is dismissed and is not automatically re-imposed upon an appellate decree; other authorities held that the restoration of the suit or the setting aside of a dismissal for default restores ancillary and interlocutory orders, including attachments.
The court analyzed the character of the order in the present case and noted an important distinction in kind: the attachment here formed part of the process of execution rather than being merely an ancillary or interlocutory order. The court reasoned that if ancillary and interlocutory orders are to be restored when a dismissal is set aside, then, a fortiori, an order that is part of execution would also be restored. When a dismissal for default is set aside, the appellate order declaring the trial Court's order wrong restores the original application and requires the trial Court to proceed from the stage at which the matter was interrupted. At that stage of execution in this case, the property had already been attached.
The court considered the appellant's reliance on Patringa Koer (which suggested limited revival as between decree-holder and judgment-debtor only) and rejected the idea that a revived attachment could be limited to operate only between the original parties. The court held that if there is an attachment, it must apply to everybody because the purpose of attachment is to prevent alienations by judgment-debtors in favour of any person.
The court then referred to authorities such as Gopal Prasad and Najmunnessa Bibi which support the proposition that an order of a superior Court restoring an attachment may relate back to the time when the attachment was first made and may render interim alienations invalid where the release was wrongful and the right to attach is subsequently established. Synthesizing these authorities, the court concluded that as a general principle when an order is set aside on appeal or otherwise consequential and ancillary orders are restored, and the same reasoning applies to an attachment that was part of execution.
Holding and Implications
Holding: The court's final decision was that the appeal fails on both points and is DISMISSED with costs.
Implications:
- The court held that when a dismissal for default is set aside or reversed on appeal, the appellate order restores the original application and the trial Court must proceed from the stage at which it was interrupted; where the property had been attached at that stage, the attachment is restored.
- The court rejected the proposition that a revived attachment could operate only between the decree-holder and the judgment-debtor and not affect third-party purchasers; the reasoning cited authorities holding that a restoration order can relate back and may render interim alienations invalid if the attachment was wrongly released and later vindicated.
- Direct effect on the parties: the appellant's contentions on both questions were rejected and the appeal was dismissed with costs; the court treated the restoration/relief as having the consequence that the attachment is reinstated and may relate back so as to affect interim transactions.
This summary is based exclusively on the content of the provided opinion and does not infer facts or considerations that are not expressly contained in that opinion.
1. The respondent obtained a simple money decree. In execution against the property which we are here concerned, the property was attached, but the petition was subsequently dismissed for default on the ground that the sale papers and the encumbrance certificate had not been filed. Eventually, however, on 28th January 1943, the decision of the executing Court was reversed with the result that the execution proceeded. In the meanwhile, however, on 10th May 1941, the appellant purchased the property that had been attached for Rs. 4500. Two questions arise in this appeal: (1) whether, upon the allowing of the appeal, the consequential order raising the attachment was automatically set aside; and (2) whether, even if it did so, it would affect the transaction that had been entered into at a time when in fact no attachment was subsisting. Both these points were decided against the appellant by the learned Judge (Panchapakesa Aiyar J.) in second appeal; but as he has granted a certificate, these two questions have been reagitated in this Letters Patent appeal.
2. Our attention has not been drawn to any decisions directly on the point here raised; but arguments have proceeded on the analogy of attachments raised in proceedings under Order 21, Rule 63 and Order 38, Rule 9, Civil P. C. It is conceded that in the former class of cases, the decreeing of a claim suit would have the effect of automatically restoring the original attachment and would render void any alienations made in the interim; but that class of cases is sought to be distinguished on the ground that the question as to the propriety of the attachment is directly in question in a claim application, as well as in a claim suit, and that the claim suit being in the nature of an appeal from the claim order it would restore the original attachment if decreed.
3. There is a considerable body of decisions to the effect that in cases of attachment before judgment, where the suit is dismissed and the attachment raised because of the mandatory provisions of Order 38, Rule 9, Civil P. C., the attachment is not automatically reimposed if, on appeal, the suit is decreed, the reason being, according to one of the decisions referred to, that the attachment is for the purpose of protecting the interests of the plaintiff during the pendency of the suit and not during the pendency of any proceeding that may arise out of the suit. In most of the cases cited by the learned advocate for the appellant, the difference in the wording of Order 21, Rule 63 and Order 38, Rule 9, Civil P.C., is stressed, and it is pointed out that whereas under Order 21, Rule 63, the order in the claim petition is specifically made subject to the result of the suit, there is nothing in the wording of Order 38, Rule 9, which suggests that the attachment would be automatically re-imposed in the event of the plaintiff's success in appeal. One would have thought that this question would not have depended on the wording of Order 38, Rule 9, alone but rather on broader principles as to the effect of appellate orders.
4. The decisions to the effect that a reversing appellate order would not have the effect of automatically re-imposing an attachment are mostly decisions of the Calcutta High Court, based ultimately on Sasirama Kumari v. Meherban Khan, 9 I. C. 918 : (13 C. L. J. 243), where one finds that the learned Judges came to the conclusion they did not upon an analysis of Indian and English cases, but on American decisions. The decision in Pindi v. U Thaw Ma, A. I. R. (18) 1931 Rang. 281 (2): (9 Rang. 472) follows the Calcutta decisions, the learned Chief Justice there having been a party to one of the Calcutta decisions. It is however unnecessary to say anything more with regard to these decision; because a Full Bench of this Court in Balaraju Chettiar v. Masilamani Pillai, 53 Mad. 334: (A. I. R. (17) 1930 Mad. 514 F. B.) has come to a similar conclusion. Pakenham Walsh J. in his judgment, with which the other learned Judges concurred, came to the conclusion he did primarily because of the weight of decisions to that effect, with which he felt that this High Court should not disagree unless there were weighty reasons for doing so. The learned Judge stated :
"The consensus of authority therefore is very much in favour of the view that an attachment before Judgment ceases automatically when the suit is dismissed, and where the matter is one of procedure and uniformity is desirable, it would require strong reasons to hold that this consensus of authority is wrong."
The learned Judge at p. 348 stated :
"As pointed out above, it is too wide a proposition to say that an appellate decree per se restores all the interlocutory orders passed in the original suit. . . ."
The learned Judge does not however say what classes of interlocutory applications may be restored and what classes may not be restored, except that he gives an instance of a case in which it would work inequity if the interlocutory application is restored.
5. Balaraju v. Masilamani Pillai, 53 Mad. 334 : (A. I. R. (17) 1930 Mad. 514 F.B.), has been relied on by the learned advocate for the appellant, not so much because of the matter that fell for decision in that case, as for the criticism of the learned Judge of the remarks of Phillips and Devadas JJ., in Namagiri Ammal v. Muthuvelappa Goundan, 56 M.L.J. 70 : (A.I.R. (15) 1928 Mad. 940). Phillips J., in that case stated :
"That order of dismissal having been set aside, the suit remains as it was on the day that it was dismissed and all proceedings taken up to that date must be deemed to be in force, when the dismissal is set aside, and in my opinion all interlocutory orders would be revived on the setting aside of the dismissal. Similarly, an order for attachment of property would also be revived."
The value of Balaraju Chettiar v. Masilamani Pillai, 53 Mad. 334 : (A. I. R. (17) 1930 Mad. 514 F. B.), is however considerably weakened by the decision of another Full Bench of this Court in Veerasami v. Ramanna, 58 Mad. 721 : (A. I. R. (22) 1935 Mad. 365 F.B.), in which many of the remarks of Pakenham Walsh J., were considered to be obiter. Beasley C. J. stated :
"It must be observed, however, that, in that case, the Full Bench dealt only with the case where the suit had been dismissed and on appeal was decreed and did not deal with a case like the present one, where, after dismissal for default, the suit wag restored to the file and eventually decreed in the trial Court, and any observations of the Full Bench upon the latter point are merely obiter, and in fact the Full Bench did not express a decided opinion upon this point, although it is contended that certain observations of Pakenham Walsh J., appear to express a view contrary to the contention of the decree-holder here and in the Court below."
The learned Judge then went on to consider the remarks of the Phillips and Devadass JJ., and clearly held a more favourable view of these remarks than Pakenham Walsh J., did in Balaraju Chettiar v. Masilamani Pillai, 53 Mad. 334 : (A.I.R. (17) 1930 Mad. 514 F.B.). Then the learned Chief Justice went on to consider a decision of Ramesam J., in Saranatha Iyengar v. Muthiah Moopanar, 65 M. L. J. 844 : (A.I.R. (21) 1934 Mad. 49), in which that learned Judge held that in the case of a suit dismissed for default and soon afterwards restored to file, in the absence of anything expressly appearing against the view that interlocutory applications were restored, the suit and all incidental matters were restored to file. This view was approved of by the Full Bench, The learned Chief Justice said :
"I entirely agree with our learned brother's (Ramesam J.'s) view upon this question. It does not seem to me reasonable that the plaintiff in a suit who has got an attachment before judgment should have again, after the restoration of the suit after its dismissal for default, to apply to the Court for a fresh attachment and that he having done so, the defendant should have to apply to raise the attachment by producing a surety or sureties. The common sense view of the matter is that all ancillary orders should be restored on the restoration of the suit without any farther orders."
He then referred to a direct authority on that point i. e., Jia Bai v. Joharmull, A. I. R. (19) 1932 Cal. 858 : (59 Cal, 1450), and approved of it.
6. In the case we are here considering, the attachment of the property was not an ancillary or interlocutory order, but part of the process of execution. If, in the case of a dismissal for default, even ancillary and interlocutory orders have to be restored if the dismissal for default is set aside on appeal, then a fortiori in a case such as we are here considering, the order attaching the property would have to be restored. When as order for dismissal for default is set aside, the effect of the appellate order which declares the order of the trial Court to be wrong is to restore the original application; and the trial Court would have to proceed with it from the stage at which it had interrupted it by dismissing it for default. If, therefore, in the present case the original order is set aside, the execution proceedings would have to be continued from the stage at which they were when the petition was dismissed for default. At that stage the property had already been attached.
7. The learned advocate for the appellant relies for both points on Patringa Koer v. Madhabanand Ram, 12 I. C. 65 : (14 C. L. J. 476), where the learned Judges came to the conclusion that there would be a revival of the attachment automatically, as far as the decree-holder and judgment-debtor were concerned ; but that allowing the appeal would not have the effect of reviving the attachment as against a third party, from which they seem to imply that the appellate order did not cover the period between the two orders. With due respect, we are unable to understand how the attachment can be revived against the judgment-debtor only. If there is an attachment, then it must apply to everybody, for the very purpose of an attachment order is to prevent alienations by the judgment-debtors in favour of any person, whether he has knowledge of the attachment or not.
8. An authority for the view that an order of the High Court restoring attachment would relate bask to the date when the attachment was first made and would render invalid any alienation in the interim period is Gopal Prasad v. Kasinath, 42 ALL. 39 : (A. I. R. (7) 1920 ALL. 356), which followed Muhammad Warris v. Pitambur Sen, 21 W. E. 435; Bonomali Rai v. Prosunno Narain, 23 ALL. 829 ; Ramchandra Marwari v. Mudeshwar Singh, 33 Cal. 1158 : (10 C. W. N. 978) and Ali Ahmed Khan v. Bansidhar, 6 A. L. J. 434: (31 ALL. 367) In Najmunnessa Bibi v. Noohiruddin Sardar, 51 Cal. 548 at p. 556 : (A.I.R. (11) 1924 Cal. 744), Rankin J., after considering the relevant provisions of the Code and the authorities bearing on the subject, stated :
"It is quite plain that, if an attachment comes to an end validly, then upon a second attachment no Court can refuse to recognise an interest validly created in the meanwhile. It is also plain that if an attachment is wrongly releases, and the right to attach is established subsequently according to law either by appeal or otherwise, the attachment will relate back to the time when it was made."
We have no doubt that the principle here applied is one of very wide application and that in general where an order of any kind is set aside on appeal or otherwise, the consequential and ancillary orders are restored.
9. The appeal fails on both the points and is dismissed with costs.
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