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Govinda Padayachi v. Kannammal.
Factual and Procedural Background
These two second appeals arise from a common judgment of the District Judge of South Arcot (dated 19-12-1953) dismissing two appeals against the order of the District Munsif of Vriddhachalam (dated 14-9-1953) which had dismissed two claim applications (M.P. Nos. 655 of 1951 and 668 of 1951). The decree-holders (respondents) had earlier obtained a maintenance decree in O.S. No. 14 of 1937, which made certain amounts a charge on scheduled properties and was also made effective against the assets of the first defendant in the hands of other defendants.
After the decree, the charged properties were apparently sold by heirs of the first defendant. The decree-holders filed E.P. No. 215 of 1950 seeking execution and attachment of certain uncharged properties; those properties were attached. Two purchasers (Govinda Padayachi and a purchaser named Thangammal) alleged that their sale-deeds (Ex. A.1 dated 19-9-1944 and Ex. A.4 dated 24-12-1945 respectively) pre-dated or post-dated attachments in ways relevant to priority. They filed the claim petitions under Order 21, Rule 58, C.P.C. The Munsif dismissed those claim petitions holding the earlier attachment valid; the District Judge concurred, and the present second appeals followed.
Legal Issues Presented
- Whether the appeals to the District Judge (and consequently the second appeals to this Court) were competent under Section 47, C.P.C., given the procedural posture of the claim petitions before the Munsif.
- Whether the order of the executing Court of 14th April 1945 reading "Not pressed. Attachment to continue" amounted to a dismissal of the execution petition for default under Order 21, Rule 57, C.P.C. (and the Madras amendment thereto), thereby terminating the attachment and allowing the purchasers' sales to prevail.
Arguments of the Parties
Appellants' Arguments (as presented in the opinion)
- A preliminary contention: the appeals before the District Judge were not competent because Section 47, C.P.C. allegedly did not apply to petitions filed before the District Munsif; the claimants could not be regarded as legal representatives of the judgment-debtors.
- Main contention (advanced by Mr. Natesan): the execution Court's order "Not pressed. Attachment to continue" (14-4-1945) effectively amounted to a dismissal of the execution petition for default under Order 21, Rule 57, C.P.C., and the accompanying phrase "attachment to continue" was irrelevant or meaningless in the face of such dismissal; therefore the attachment ought to have ceased and the purchasers' sales should be upheld.
- Reliance was placed on interpretations of the original Rule 57 and on several authorities (a sequence of cases cited) that, it was argued, favoured construing the order as a dismissal which would terminate attachment.
Respondents' Arguments (as presented in the opinion)
- Both sides conceded that interpretation of the executing Court's phrase must be done with reference to the circumstances in which the order was passed rather than by applying a single uniform rule in every case.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Anjayaya v. Qundarayudu (I.L.R. 1943 Mad. 703 = 56 L.W. 756) | Applied on the competence point to support that appeals were maintainable under the facts. | The Court accepted that the ruling in this decision applied and concluded the appeals were competent. |
| Venkatarao v. Suryarao (I.L.R. 1860 Mad. 39 = 62 L.W. 264) / (A.I.R. 1950 Mad. 39) | Addressed the effect of dismissal of an execution petition for default on the attachment (that dismissal terminates the attachment). | The Court cited this decision as supporting the proposition that dismissal for default terminates attachment, but held that in the present case there was no dismissal or default; the decision's reasoning was accepted where it applied. |
| Periannan Chettiar v. Lakshmanan Chettiar (68 M.L.J. 265 = 41 L.W. 325) | Distinction between an execution petition being "closed" and being "dismissed"; a closed petition does not necessarily attract the consequences of dismissal under O.21, R.57. | The Court relied on this authority to support the view that "not pressed" / "closed" may not amount to a dismissal and that attachment may continue if the Court so records; the Court approved this line of authority. |
| M. Rukmani v. Bamswaroop (A.I.R. 1944 Nag. 324) | Where Court expressly keeps attachment alive, attachment does not cease unless O.21, R.57 consequences apply; acquiescence in payment arrangements does not amount to default of decree-holder. | The Court quoted and applied this reasoning to conclude that the order keeping attachment alive prevents a finding of dismissal for default under the circumstances. |
| Thakur Prasad v. Fakrullah (17 All. 106) (1895) | One of several older authorities cited concerning interpretation of orders under O.21, R.57 (context supplied by counsel). | The Court observed that this and several similar older authorities did not provide decisive assistance for the particular conclusion urged by the appellants; no general rule was inferred from them. |
| Mandhayan Sheikiya v. Badram Dalai (17 C.W.N. 104) (1912) | Another authority cited by appellant's counsel in support of the contention that "not pressed" should be treated as dismissal for default. | The Court recorded that this authority did not, in the circumstances of the present case, support the appellant's contention sufficiently; it was not of decisive assistance. |
| Dhonda Misir v. Sheik Qmrban (A.I.R. 1947 All. 313) | Cited among decisions regarding the effect of non-prosecution or closure of execution proceedings. | The Court considered this and similar decisions but concluded they did not justify overruling the lower courts' construction of the order in the present facts. |
| Ramabadra Reddiar v. Rama Chandra Reddiar ((1952) 2 M.L.J. 73 = 65 L.W. 690) | Cited by counsel for doctrinal support on interpretation of execution orders and consequences under R.57. | The Court held that no general rule could be inferred from this decision that would mandate the appellants' construction; it was not of decisive assistance on the facts before the Court. |
Court's Reasoning and Analysis
The Court examined two principal procedural questions: (1) whether the appeals were competent under Section 47, C.P.C., and (2) whether the executing Court's order "Not pressed. Attachment to continue" of 14-4-1945 amounted to a dismissal of the execution petition for default under Order 21, Rule 57, C.P.C., thereby terminating the attachment.
On competence (S.47): the Court relied on prior decisions (Anjayaya v. Qundarayudu and Venkatarao v. Suryarao) to conclude that the appeals entertained and disposed of by the District Judge were competent and therefore the second appeals to this Court could be heard on their merits.
On the construction of the executing Court's order, the Court emphasised that interpretation must depend on the facts and circumstances in which the order was made rather than a blind application of a uniform rule. Key factual considerations were that the decree was a maintenance decree payable in monthly instalments, defaults and subsequent lump-sum payments had occurred, and the execution application (E.P. No. 279 of 1944) had been adjourned and its prosecution intermittently pursued.
The Court analysed the language "not pressed" and concluded that those words do not necessarily mean an absolute dismissal. The proviso to R.57 presumes a dismissal only when there is a default by the decree-holder. The Court reasoned that (a) the executing Court did not state the petition was "dismissed", (b) the presence of the explicit phrase "attachment to continue" showed that the Court did not treat the application as finally terminated, and (c) mere representation that the application was not then being pressed did not necessarily constitute the kind of default contemplated by R.57 which would oblige the Court to dismiss and order the attachment to cease.
The Court placed weight on the Madras amendment to R.57 (which was intended to introduce elasticity and judicial discretion) and relied on authorities distinguishing "closed" proceedings from "dismissed" ones (Periannan Chettiar v. Lakshmanan Chettiar) and on the proposition that where a Court expressly keeps an attachment alive it cannot be said to have ceased unless the conditions of O.21, R.57 are satisfied (M. Rukmani v. Bamswaroop).
The Court therefore concluded that on the facts the executing Court intended to keep the attachment alive and the order could not be treated as a dismissal for default; consequently S.64 C.P.C. applied and the attachment remained valid against the purchasers' subsequent claims. The Court found the sequence of older authorities cited by the appellants insufficient to displace this view.
Holding and Implications
Holding: The Court concluded that the appeals were competent and that the executing Court's order "Not pressed. Attachment to continue" did not amount to a dismissal of the execution petition for default under Order 21, Rule 57, C.P.C. Consequently, the Court affirmed the conclusions of the courts below.
DISMISSED. The two second appeals were dismissed with costs, one set only. No leave.
Direct consequences for the parties (as stated in the opinion): the orders below upholding the validity of the prior attachment were affirmed and the claim petitions seeking release of the attached properties were rejected. The Court noted that Section 64 C.P.C. applied to the facts.
Broader implications: the Court relied on existing authorities and statutory interpretation of O.21, R.57 (and the Madras amendment) to resolve the issue; the opinion does not announce a novel general rule beyond its application to the facts before it.
(Appeals (disposed of on 28-3-1956) against the order of the Dt. Court, South Aroot, dated 19-12-1953 in A.S. No. 371 of 1953, preferred against the order of the Dt. Munsif Court of Vriddhachalam in M.P. No. 668 of 1951 in O.S. No. 14 of 1937 etc.)
These two second appeals arise out of the common judgment of the learned District Judge of South Arcot dismissing two appeals preferred against the order of the learned District Munsif of Vriddhachalam dismissing in turn the two claim applications M.Ps. Nos. 655 of 1951 and 668 of 1951.
The decree-holders-respondents, in these two appeals had obtained a decree in O.S. No. 14 of 1937 on the file of the District Munsif's Court of Vriddhachalam, South Arcot, for specific amounts by way of maintenance in their favour. These amounts were also made a charge over the properties set out in the schedule to the decree. The decree also was against the assets of the first defendant in the hands of the other defendants. Subsequent to the decree the charged properties appear to have been sold away by the heirs of the first defendant. The decree-holders applied for execution of the decree in E.P. No. 215 of 1950 and prayed for attachment of certain properties not charged, and they were accordingly attached. Two of these properties had already been sold by Thangammal, a daughter-in-law of the first defendant, acting on behalf of her minor children in favour of Govinda Padayachi. This sale was under Ex. A. 1 dated 19th September 1944. Another Thangammal was the purchaser of another properly under the sale deed Ex. A. 4 dated 24th December 1945. After the attachment of these properties, the vendees Govinda Padayachi and Thangammal filed the two applications M.P. Nos. 655 of 1951 and 668 of 1951 to get these properties released from attachment. The applications were made under O. 21, R. 58, C.P.C.
By a common order dated 14th September 1953 the learned District Munsif of Vriddhachalam dismissed these claim petitions upholding that the attachment made on 19th April 1944 was valid and that the rights of the claimants could not prevail as against the decree-holders' rights. Against that order the two claimants preferred the two appeals A.S. Nos. 371 and 382 of 1953. The learned District Judge concurring with the order of the learned District Munsif dismissed the two appeals in a common order dated 19th December 1953. The two claimants Gsvinda Padayachi and Thangammal have preerred these two miscellaneous second appeals referred to above.
It must be stated that towards the decree obtained by the respondents, the judgment-debtors had paid some amounts in instalments. The decree itself was for payment of Rs. 10 per mensem by way of maintenance for the wife and Rs. 5 for children. When the claim petitions were being investigated in E.P. No. 215 of 1950 by the learned District Munsif the records disclosed that the sale deeds in favour of the respondents-vendee had come into existence after attachment had been effected on a prior execution petition, viz., E.P. No. 279 of 1944. That attachment was on the 14th September 1944, that is, some days prior to the sale deeds in favour of the respondents. The execution application in which the prior attachment had taken place, viz., E.P. No. 279 of 1944, was being adjourned from time to time and some claim petitions appear to have also been filed in that petition, which, however, did not succeed. Ultimately, the execution petition itself was adjourned for sale pap ers more than once. On the 14th April 1945, the executing Court terminated the proceedings by an order in these terms: “Not pressed. Attachment to continue.” The learned District Munsif, who construed these proceedings after he has reserved orders in the claim petitions now in question, came to the opinion that the sale deeds in favour of the respondents having come into existence after the properties had been attached and during the continuance of the attachment, could not prevail against the decree-holders. It is this conclusion of the learned District Munsif that has been attacked before the learned District Judge and is also now pressed for in these two appeals.
A preliminary point was taken that the appeals before the learned District Judge were not competent on the ground that S. 47, C.P.C., did not apply to petitions filed before the learned District Munsif. It was argued that the claimants in the two petitions could not be deemed to be legal representatives of the judgment-debtors. In view of the decisions of this Court in Anjayaya v. Qundarayudu (I.L.R. 1943 Mad. 703=56 L.W. 756) and Venkatarao v. Suryarao (I.L.R. 1860 Mad. 39=62 L.W. 264), I do not think that there is any need for me to discuss this point at any length. I am of the opinion that the ruling in these decisions would apply to the facts of this case and the appeals having been entertained and disposed of by the learned District Judge, the second appeals in this Court are competent and they have to be dealt with here on their merits.
Mr. Natesan in the main contended that the order passed on the 14th April 1945 to the effect that the E.P., was “not pressed” and that the “attachment was to continue” was in fact an order dismissing the E.P. outright and that the expression “attachment to continue” was irrelevant and could not amount to a subsistence of the attachment of the properties already made. A good deal of the time was taken in the discussion of the meaning and import of he language of the original R. 57, O. 21, C.P.C., and als o the Madras amendment made thereto. Numerous decisions were also cited by Counsel on both sides in support of their respective contentions based on the interpretation of the amended R. 57, of O. 21, C.P.C. But as has been repeatedly laid down by the decisions of this Court and also of other High Courts in this country, what was intended and what was expressed by the learned District Munsif, when he passed the order on the 14th April 1945, has to be determined in the light of the circumstances and on the facts of the case, and there can be no uniform rule applied in every case, irrespective of what the circumstance and the facts may be. Both sides have conceded that the determination as to what was intended by the learned District Munsif, when he passed the order in question has to be done only with reference to the circumstance when the order was passed.
We have then to consider the actual circumstances in which the learned District Munsif passed the order in terms viz., “Not pressed Attachment to continue” on 14th April 1945. It must be remembered that the decree itself was only a maintenance decree under which the maintenance amount was to be paid in instalments from month to month. The possibility, therefore, of these instalments being paid regularly, default being committed thereof, and such default being made good at a later stage, cannot be ignore d. As a matter of fact, in the case there seems to have been default committed, lump sums having been paid to make good the defaulted instalments. Whenever default is committed under an instalment decree, it is the right of the decree-holders to seek the aid of the Court to enforce payments under the decree and the execution of the decree can be avoided by the judgment-debtors by making payments or by asking extension of time for payments of the defaulted instalments. The application in question seems to have been one such application for execution of the decree to enforce payment of the defaulted amounts. When such an execution is taken out, there is also the possibility of the decree-holders coming to an understanding with the judgment-debtors in regard to the manner and the method of paying the defaulted instalments. Any such understanding would necessarily have effect upon the further prosecution of the execution petition. It is in this back-ground that the last order in question has to be considered and understood. The earlier order was one directing the decree-holders to file the sale papers. Thereafter the decree-holders approach the Court and represent that they do not propose to press the application but at the same time make a request that the attachment should be continued. In these circumstances the Court on invitation by the decree-holders passes the orders “not pressed. Attachment to continue.” The question then is whether either the decree-holders or the Court intended to put an end to the execution petition once for all, or whether it was intended by the applicants, as also by the Court, that the exec ution before the Court was to be kept in suspense and renewed later on, whenever the need arose for the same and that in the meanwhile the attachment that had already been effected should not be raised, but should be allowed to continue until such time as the decree-holders were compelled to approach the Court to render them further aid in the matter of the realization of the debt due under their decree. It is contended by Mr. M.S. Venkatarama Aiyar, the learned Counsel for the decree-holders that if the result which intended to follow the terms of the order passed by the Court was that the attachment should be continued, the meaning to be attached to the expression “not pressed” could not amount to a dismissal of the execution application for default but could be understood to mean only that the application was kept in suspense for the time being to be renewed at a later stage. On the other hand, Mr. Natesan would argue that R. 57 of O. 21 as amended by the Madras High Court does not leave any scope or room for an order of the kind, passed by the learned District Munsif in the present case. It is his contention that according to the first part of R. 57, the Court has only two alternatives when any property was attached in execution of a decree. The first is to dismiss the application, and the second is to adjourn the proceedings to a future date; and when it resorts to either of these alternatives the Court has to make it clear whether the attachment continues or ceases. In this case, the Court did not adjourn the proceedings to a future date. According to Him the effect of the order, therefore, is only a dismissal, though the very term was not used, and when a dismissal has taken place there cannot be a continuation of the attachment and any order that the attachment should continue could not be of any avail and it would also be meaningless in the context. The proviso) to R. 57 of O. 21 is next relied upon by the learned Counsel for the appellant, which says that when the Court dismisses the execution application by reason of the decreeholder's default, the order shall state that the attachment do cease. His contention is that when the decree-holders reported to the Court that they were not pressing the execution application, it meant that they were not willing to prosecute the application further and such failure to prosecute the application tantamounts to a default on the part of the decree-holders and that when such a default occurs by reason of the failure of the decree-holders to further proceed with the Prosecution the execution application the inevitable order should be that the attachment should cease, though it may not be expressed in such terms. If the Court had passed an order that the attachment should continue, notwithstanding the fact that the decree-holders had committed default by their failure to proceed with the execution application, the order that attachment should continue is not warranted and is meaningless and could not be given effect to and the Court is not authorised by the proviso to R. 57 of O. 21 to pass an order continuing the attachment when default on the part of the decree-holders had arisen, and which default left the Court with the only alternative, viz., to dismiss the application. This argument seems to be plausible, but I do not think that in the circumstances of the present case it can be accepted.
The proviso in the first instance states that the Court should dismiss the application in the second instance, it provides that such dismissal should be by reason of the decree-holders' default and in the third instance, it lays down that when these two things happen, the Court shall state that the attachment do cease. It is obvious that when the executing Court made an order in the present case it did not “dismiss” the application. It merely stated “not pressed”. “Not pressed” need not necessarily mean a dismissal in all cases. It may mean that it is an order for statistical purposes which necessarily need not be a final termination of the execution application. It may also mean that the execution application is for the time being not pressed, but kept in suspense for being renewed at a later date. When the order does not state that the application is dismissed, it is difficult to say that the Court intended to arrive at that result by the actual use of the words “not pressed.”
In the second place there should be a default on the part of the decree-holder in order to enable the Court to dismiss the application and to direct that the attachment should cease. In this case there has been only a report to the Court that the application is not pressed. Such a report need not necessarily mean, nor involve a default on the part of the decree-holder. If the Court understood the representation of the decree-holders that they were not pressing the application to be a default on their part or a failure to prosecute the execution application, the Court would certainly have not stopped with the expression “not pressed” alone, but would have indeed gone further and stated that the application not being pressed was dismissed. On the other hand, what the Court has actually done is that instead of following up the expression “not pressed” by the expression “dismissed”, it records the expression “attachment to continue” instead of stating that “attachment shall cease.” This would naturally lead to the inference that the Court was not willing to dismiss the application but on the other hand was willing to allow the attachment to continue, notwithstanding the fact that the decreeholder was reporting that he was not willing to proceed with the application further at that time. The Court did not, therefore, understand the representation “not pressed” to mean that there was a failure or a default on the part of the decree-holders to merit an order of dismissal or a discontinuation of the attachment already effected. If the Court had intended that the execution petition should be treated as dismissed for default and that the proceedings should terminate finally, it would have felt bound to order that the attachment was also to cease. But the Court exercised its discretion actually the other way. It did not dismiss the application; nor did it also order the ceasing of the attachment. When such an order has been made in the exercise of a discretion vested in the Court, it cannot be said that the Court intended a final termination of the execution application. The Court cannot be said to have also found that there was default on the part of the decree-holders when it did not choose to make an order that petition stood dismissed. I am therefore unable to hold in this case that there has been a dismissal for default. Nor am I prepared to hold that non-prosecution of the execution application conveyed by the term “not pressed” would necessarily mean a default of the kind contemplated under R. 57. Non-prosecution may be due to various causes, which may not be expressed by the party reporting to the Court that the application is not pressed. In my opinion, while the old R. 57 of O. 21 provided for only two alternatives and it gave rise to difficult situations, the Madras Amendment was intended to make the position more elastic and vest a greater discretion in the Court when disposing of execution applications. I am inclined to agree with the rulings in Periannan Chettiar v. Lakshmanan Chettiar (68 M.L.J. 265=41 L.W. 325), wherein a Bench of this Court has held that an execution petition which is “closed” does not stand dismissed so as to attract the mischief of O. 21, R. 57, C.P.C. The distinction between “closed” and “dismissed” has been pointed out in the said decision; and the argument that failure to pay batta amounted to a default and the closing of the application should be construed as the dismissal was repelled. In M. Rukmani v. Bamswaroop (A.I.R. 1944 Nag. 324) it was held by Bose, J. that:
"When the Court expressly keeps the attachment alive it cannot be said to have ceased unless the provisions of O. 21, R. 57 apply, that is to say, when there has been a default of the decree-holder which compels the Court to dismiss the application. It is however impossible to say that there is any default on the part of the decree-holders when they accede to their judgment debtor's request for time or for instalments."
This decision, in my opinion, would apply to the facts of the present case. In Venkatarao v. Suryarao (A.I.R. 1950 Mad. 39), it was held that the dismissal of an execution petition for default of a deereeholder terminates the attachment, whether there was or was not an order of the Court stating the consequence. As already pointed out, in this case, it cannot be said that there was a dismissal or a default on the part of the decree-holders. With respect I am in entire agreement with the reasoning that is found in this decision, which fully applies to the facts of the present case. I must observe in this connection that the several decisions, which Mr. Natesan, the learned Counsel for the appellant, has placed before me beginning from Thakur Prasad v. Fakrullah (17 All. 106) of the year 1895 and Mandhayan Sheikiya v. Badram Dalai (17 C.W.N. 104) of the year 1912 and ending with Dhonda Misir v. Sheik Qmrban (A.I.R. 1947 All. 313) and Ramabadra Reddiar v. Rama Chandra Reddiar ((1952) 2 M.L.J. 73=65 L.W. 690) do not seem to be of much assistance to the learned Counsel to support his contention that the expression used in the present case should be interpreted to mean that it was a dismissal for default and that the attachment should be automatically deemed to have ceased, though there was an order to the contrary effect. Consequently he claimed that the sales made in favour of his client should be uphold. No general rule can be inferred from these decisions. I am, on the other hand, of the view that in this case as has been correctly held by the Court below, S. 64 Civil Procedure Code, does apply to the facts, and these two appeals have, therefore, to be dismissed and are accordingly dismissed with costs, one set only. No leave.
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