Mahammad Gaffar Baig v. Mahammad Abdul Khaleel Khan .

Judgement

The Judgment-debtor has brought this appeal from the Order of the Subordinate Judge, Tenali, directing the execution of a decree obtained against him to proceed. One of the decree-holders put in execution a decree obtained by him and some others against the appellant for Rs. 5,445-8-3 in O.S. No. 3 of 1940, Sub-Court, Tenali, on 25th February, 1940, but nothing seems to have come out of it. The next E.P also appears to have been unfruitful. In E.P. No. 123 of 1946 the properties of the judgment-debtors were attached and the E.P. was closed.

In 1948 by levying execution a sum of more than Rs. 6,000 was realised for which part- satisfaction was entered. For the unpaid balance, execution was taken out in E.P. No. 221 of 1951 for sale of the property already attached. This petition was not pressed and so it has been dismissed. It is represented by the counsel for the respondent that just then one of the parties obtained stay of the execution of the decree and that was the reason why the respondent did not press that execution petition.

2. The petition out of which this appeal had arisen was filed for sale of the property of the judgment-debtor. Objection was raised on behalf of the judgment-debtor that the petition was not maintainable as no sale could be effected without fresh attachment and that there was no subsisting attachment over the properties sought to be sold. The method of calculation adopted by the decree-holder was also challenged. Overruling the contentions of the judgement-debtor, the Subordinate Judge of Tenali allowed the execution to proceed.

3. In this appeal, the decision of the trial Court is impugned as being unsustainable. It is urged for the appellant that since E.P. No. 221 of 1951 was dismissed for default of the decree-holder the attachment should be deemed to have been raised and therefore the sale proceedings could not be continued. The argument of Mr. Ramarao is that though no specific order was passed by the executing Court raising the attachment it would have that effect since the petition was dismissed for the default of the decree-holder and this is founded on the proviso to O. 21, R. 57, which says that

"when the Court dismisses such an application by reason of the decree-holders default it shall state that the attachment had ceased.

To this extent, the argument for the appellant seems to be sound. Though no specifie order is made that the attachment ceased, if the application was dismissed by reason of the decree-holders default, the result contemplated in the proviso would have followed as a necessary corollary. There is also force in the submission of Mr. Ramarao for the appellant that the non-prosecution of the petition such as by not pressing it amounts to a default of the decree-holder. There is abundant authority for the position that the default envisaged in that rule is not confined to non-appearance or non-payment of batta or failure to produce necessary documents. It also includes failure to do things for the successful execution of the decree. This seems to be the view of almost all the High Courts. See Namuna Bibi v. Roshan Miah, ILR 38 Cal 482 (A) : Dildar Husain v. Sheo Narain, ILR 41 All 157 : (AIR 1919 All 194) (B) : Fateh Din v. Qutab Din, ILR 3 Lah 7 : (AIR 1922 Lah 108) (C) : Lakhpat Rai v. Mayya Mal, AIR 1924 Lah 645 (D) : Venkatarao v. Surya Rao Bahadur Garu, AIR 1950 Mad 2 (E).

4. But this does not dispose of the appeal. It has to be remembered that the attachment was effected in E. P. No. 123 of 1946 and that E. P. was not dismissed. It was only E. P. No. 221 of 1951 that was dismissed for the default of the decree-holder. Could this have the effect of putting an end to the attachment, effected in 1946? In my opinion, it does not, in view of the language of the proviso to O. 21, R. 57, Civil Procedure Code. It is the dismissal of the execution petition in which, for the first time, the attachment was effected that would result in the attachment being raised. The fact that subsequently another execution petition was dismissed could not lead to the cessation of the attachment because the expression such an application has reference only to where any property has been attached in execution of a decree. Reading the rule as a whole, the conclusion is irresistible that the penalty specified in the proviso would be attracted only when the first E. P. in which the attachment was made, is dismissed and the dismissal of subsequent applications is immaterial. This view of mine gains support from decided cases. Mr. Justice Venkata-ramanarao expressed the same opinion in Karuppan Chettiar v. Rajangam, (1939) 2 Mad LJ 916 : (AIR 1940 Mad 172) (F). To the same effect is the ruling of a single Judge of the Madras High Court in Subrahmanian Chettiar v. Official Receiver of Ramnad, (1949) 1 Mad LJ 143 : (AIR 1949 Mad 594)(G). The observations of Justice Varadachariar who delivered the opinion of the Bench in Sathappa Chettiar v. Chockalingam Chettiar, AIR 1940 Mad 615 (H), also lends support to this theory. On this discussion, it follows that the conclusion of the learned Judge is correct though there is no discussion of the matter at all.

5. The next question is whether the amount claimed by the decree-holder respondent is correct. The lower Court has not gone into the matter. No material is placed before me to arrive at a decision as to the amount due by the judgment debtor to the decree-holders. The matter has therefore to be sent back to the trial Court for this purpose. The E. P. is remanded to the trial Court for determination of the balance, if any, due to the decree-holder. Costs will abide the result.

Case remanded.