ARUMUGHAM AMMAL Vs. NAYINAR PANICKER

JUDGEMENT

(1.) THE question of law raised in this second appeal is regarding the effect of the dismissal of an Execution Petition for the default of the decree-holder on an attachment before judgment. Both the lower Courts have held that the dismissal for default of the Execution Petition has vacated the attachaient prior to the decree and the second appeal questions the correctness of the aforesaid decision.

(2.) THE appellant before me was the 3rd defendant in the suit, which was for declaration of title to the suit property and for setting aside a summary order passed in a claim-proceeding. The suit property originally belonged to one muniyandi Pillai and one Kumaraswami Pillai and the same was outstanding on a mortgage from them, which mortgage right was purchased by the 2nd defendant. The plaintiff purchased the equiry of redemption from the original owners trader ex. B on 7th Meenam 1116 ME. The 1st defendant obtained a decree for arrears of rent against the original owners in 1112 and the suit property was attached before judgment in that suit at the instance of the 1st defendant. After the decree against the original owners for arrears of rent, the 1st defendant filed an execution petition for personal execution on 17th Midhunam, 1118. Notice therein was returned unserved and the execution Court directed the decree-holder to furnish proper address and also to pay process fees. This direction not having been complied with, the execution petition was dismissed on 15th Chingom, 1119. Thereafter the decree-holder filed another execution petition with a prayer for the sale of the property already attached before judgment and the Court directed the decree-holder to show how the attachaient was still subsisting. The decree-holder filed a memo into Court alleging that the attachment before judgment was still in force snce the decree had not been set aside; but the Court ordered that the decree-holder should apply for attaching the property again and adjourned the Execution Petition to 27th Makaram 1119, on which date also the decree-holder filed a petition alleging that the attachment was still subsisting. But the Court considered that the attachment was not subsisting and consequently directed the decree-holder to re-attach the suit property; which direction not having been complied with, that Execution Petition was also dismissed on 19th kumbhom, 1119. Finally, the decree-holder filed a third execution petition on 17th edavam, 1119, in which the suit property was proclaimed and sold without a fresh attachment. In pursuance of that sale the decree-holder, who is the 1st defendant in the present proceeding, applied for delivery of possession of the property, when the plaintiff 1st respondent before me obstructed and filed a claim petition. The execution Court dismissed the claim petition of the plaintiff and ordered delivery of the property to the decree-holder 1st defendant. The suit, out of which the second appeal arises, has been thereafter filed to set aside that order and declare the title of the plaintiff. It may be mentioned at this stage that the 3rd defendant-appellant is the purchaser from the 1st defendant, so that if the 1st defendant himself has obtained no title to the suit property under the court sale, then the 3rd defendant's second appeal will necessarily fail.

(3.) MR. T. N. Subramonia Iyer, the appellant's learned advocate, contends that by the dismissal of the first execution petition on 15th Chingom, 1119, the attachment before judgment does not ipso facto cease. The argument of the learned counsel is two-fold. Firstly, he contends that the dismissal of an execution petition for the default of the decree-holder does not terminate an attachment before judgment, but vacates only an attachment in execution. Secondly he urges that, even if the dismissal of the execution petition for the default of the decree-holder terminates the attachment prior to judgment, that resuit can follow only in a case where the execution petition which has been dismissed is for the sale of the property attached before judgment and the penal resuit of the attachment dropping to the ground cannot resuit in a case where the execution petition which is dismissed for default is only, as in the present case, for Personal execution against the judgment-debtor.