UMMACHI KANNUMMAL MOHAMMED PATHUMMAL Vs. SUBRAMONIA PILLAI

JUDGEMENT

(1.) The decree holders are the appellants. Their application tiled as E. P. No. 224 of 1973, dated 19th July 1,973 to proceed with the execution taken by them earlier as E. P. No. 73 of 1960 has been dismissed by the lower Court as barred by limitation. To understand the dispute between the parties it is necessary to state the various steps that had been taken in execution of this case. The Trial Court passed a money decree on 12th February 1955. The appellate decree is dated 2nd September 1957. On 1st June 1960 the decree holder filed an execution petition which contained three prayers: (1) Warrant was prayed for against the second defendant (2) and (3). The properties of defendants 1 and 2 were required to be attached and sold for the realisation of the decree amount. On 1st December 1960 the decree holder filed an attachment schedule mentioning the properties of the second defendant to be attached. The court passed an order on 12th December 1960 to attach. The attachment was effected on 20th December 1960. When the case was posted for further steps claim petition C.M.P. No. 170 of 1961 was filed by some strangers against some of the properties attached. C.M.P. No. 344 of 1961 was filed by another stranger against the attachment of some other properties. The lower court allowed C.M.P. No. 344 of 1961 first on 31st October 1961. The attachment over the properties mentioned in that claim petition was raised. The other claim petition was also allowed on 15th March 1962. Then the execution petition was posted for further steps. The decree holder on 11th August 1962 filed a proclamation schedule and also the process for issuing notice of proclamation. On 29th August 1962 the court passed an order calling upon the decree holder to file a statement whether this proclamation schedule is proper in the light of the order dated 15th March 1962 raising the attachment. Though the decree holder took two adjournments to file the statement, for his default in not filing the same, the Execution Petition was dismissed on 9th November 1962. In the meanwhile the decree holder filed two suits against the two orders stated above raising the attachment of the properties. Against the order on C.M.P. No. 344 of 1961 he filed O.S. No 51 of 1962 and against the other order he filed O.S. No. 12 of 1963. Both those suits were tried together and they were allowed by judgment dated 19th July 1966. The defendants in those suits respectively filed appeals A.S. Nos. 37 and 38 of 1967 before this Court. But, they were also dismissed on 23rd January 1971. Pending the appeals before this Court on 24th July 1968 the decree holder filed Execution Petition No. 9 of 1968 to attach and sell the properties of the first defendant. That was pending when the above appeals were disposed of on 23rd January 1971. On 19th July 1973 the decree holder filed the present Execution Petition No. 224 of 1973 in which he narrated all the above facts, his filing the first Execution Petition No.73 of 1960, the order thereon and the result of the suits which he filed. According to him as a result of the decrees vacating the orders raising the attachment, the attachment continues and therefore the properties may be proclaimed for sale and for that purpose Execution Petition No. 73 of 1960 may be revived. The main objection of the judgment debtors was that this application being more than 12 years of the decree is barred by limitation. The lower court has accepted the same. Hence this appeal.

(2.) From the narration of the facts mentioned above it is clear that the executing court wrongly raised the attachment effected on the properties in 1960. The decree holder had to file a suit as provided for under O.21, rule. 63 to vacate that order and that he could successfully do only with the dismissal of the appeals A. S. Nos, 37 and 38 of 1967 by this Court on 23rd January 1971. When the court passed a wrong order and the decree holder had to resort to a remedy provided by law to get the order vacated he cannot be penalised if the proceedings taken by him take a long time and 12 years elapse after the passing of the decree. In such a case it is open to the decree holder to move the executing court to revive the application which has been dismissed as a consequence of the wrong order passed by the executing court. This is because the release from attachment on the claim to the attached property being allowed is only provisional in character and is subject to the result of the suit which is allowed to be brought under O.21, R.63 Civil Procedure Code. That suit is "simply a form of appeal" and the plaint therein is for review of a summary decision: see Phulkumari v. Ghanashyam 35 I. A. 22, a suit to set aside an order passed on an application made to set aside the attachment (see S.41 Court Fees Act), and from that stand point, the order for release does not put an end to the attachment so as to leave the claimant free to deal with the property as he likes; the effect of the decree setting aside the order is to maintain uninterrupted the attachment originally made. This is clear from the judgment of Sir Richard Couch, C. J. in , Mohamed Warris v. Pitambar (1874) 21 W. R. 435 followed by Mookerjee, A. C. J. in Pratap Chandra v. Sarat Chandra AIR 1921 Cal. 101 . The observation of Sir Richard Couch, C. J. reads thus:

(3.) Then the next question is whether there is any time limit to apply for revival or continuance. Even if the residuary Art.137 applies (it is not necessary to finally decide it in this case) the dedree-holder has come within three years of the final disposal of the appeal filed by the defendants against the decree passed against them in the claim suit. So there is no limitation.