Ardeshir Nusserwanji Dossabhoy v. Usman Gani Memon And Others

1. The question in this appeal is whether O. 21, R. 57 of the CPC, applies to property attached before judgment under O. 38 of the CPC. The trial Court held that it did; the lower appellate Court, that it did not. The purchaser from the original judgment-debtors appeals.

2. The property in suit consists of a house at Panchganj, which was attached before judgment by the plaintiff in Suit No. 343 of 1916 in the Court of the First Class Subordinate Judge, Poona.

3. This suit was decreed on 6th March, 1917. On 31st October 1918, an application was made by the decree-holder to the decreeing Court for transfer of the decree to the Court of Wai, in the Satara District, for execution, and was granted. On 3rd October, 1922, the decree-holder filed a darkhast in the Court of the Subordinate Judge of Wai for sale of the attached property. All the decree-holders were minors, and the Court of Wai ordered the darkhastdar guardian to give security. He failed to do so, and the darkhast was struck off on 22nd November, 1923.

4. On 7th February, 1924, the decree-holders filed the present darkhast, originally for attachment and sale of move-able property, and amended on 12th April, 1924, for attachment of the property now in question. The property was not attached till 10th January, 1925. The appellant who had purchased the property on 19th August, 1924, applied to raise the attachment and obtained an order in his favour on 21st February 1925. The decree-holder now seeks to sell the property without further, attachment on the strength of the attachment before judgment in 1917.

5. The contest as between the decree-holder respondent, absent in this Court, and the purchaser appellant obviously turns on the question whether the attachment before judgment was or was not subsisting on the date of the purchase, that is, on 19th August, 1924. That question in its turn depends upon whether the provisions of O. 21, R. 57 of the CPC, applied to the darkhast of 1922, in which case the attachment before judgment has ceased and the appellant must succeed.

6. An attachment before judgment enures even after the decree: Pallonji Shapurji v. Edward Vaughan(1) and Sewdut Roy v. Sree Canto Maity(2). Where the property is under attachment before judgment, under O. 38, R. 11 of the CPC, it is not necessary upon an application for execution to apply for a re-attachment. The property can be sold without such an attachment. That was in fact what the decree-holder sought to do in the darkhast of 1922 when he did not apply for a fresh attachment. Where a plaintiff who has obtained an attachment before judgment obtains a decree, he will presumably wish and apply immediately to execute it. The Court by a second attachment after judgment would do nothing more than it has done by the previous attachment before judgment. That presumably is the raison d'etre of O. 38, R. 11 of the CPC. The Wai Court imposed a condition upon the attaching decree-holder for security with which he failed to comply. It is difficult to hold that the same Court which imposes a condition in one breath upon a subsequent order, would maintain the attachment without security after default of such a condition and dismissal of the darkhast for default.

7. The words “has been attached in execution of a decree” in O. 21, R. 57 of the CPC, have been interpreted by the Courts in two ways. The narrower construction is that the attachment must have been after and expressly in execution-of the decree. The wider construction is that by virtue of O. 38, R. 11 of the CPC, it has become attached in execution of a decree, even though the date of the actual attachment might have been before judgment. I agree with the latter and not with the former construction. There appears no reason why the legislature should prefer a decree-holder who has been in default merely because he has obtained attachment before judgment to a decree-holder who is in default who has obtained an attachment after the decree. The narrower construction adopted by the Calcutta High Court in Ganesh Chandra v. Banwari Lal(3), followed by the Allahabad High Court in Bohra Akhey Ram v. Basant Lal(4), and previously by the Madras High Court in Venkatasubbiah v. Venkata Seshaiya(5), has now been given up in favour of the wider construction by the Madras High Court by a majority of the Full Bench in Meyyappa Chettiar v. Chidambaram Chettiar(6). The judgment of Ramesam, J., is exhaustive on the point, and agreeing as I do with the reasoning of Ramesam, J., at p. 502 and Coutts-Trotter, J., at p. 498, I am of opinion that on the dismissal of the darkhast by reason of the decree-holder's failure to give security, the attachment before judgment which was then the only attachment under which the property could be sold, must be held to have ceased under O. 21. R. 57 of the CPC.

8. In this view the appeal is allowed, the order of the lower appellate Court is set aside and the order of the Subordinate Judge is restored with costs throughout on the respondents.

V.S/R.K

9. Appeal allowed.