R.M.S.M.P. SUBRAMANIAN CHETTIAR Vs. THE OFFICIAL RECEIVER OF RAMNAD, REPRESENTING THE ESTATE OF A.T.K.P.L.S.P., SUBRAMANIAN CHETTIAR

JUDGEMENT

(1.) THE view of the learned Subordinate Judge that the present application falls under Section 47 of the Code of Civil Procedure is correct. The petitioner purchased the property in Court sale on the 28th August, 1944, in execution of the decree in O.S. No. 77 of 1931, Subordinate Judge's Court, Devakottai, and obtained delivery of possession of the property on the 13th December, 1945, and 22nd September, 1946. The property was attached earlier in execution of a decree of the Rangoon High Court in C.R. No. 632 of 1929 in E.P. No. 73 of 1937. By reason of the insolvency of the judgment -debtors the execution petition. E.P. No. 73 of 1937 was not pursued and the petition was closed. After the adjudication was set aside, the decree -holder filed Application No. 46 of 1941 to continue the execution as prayed for in E.P. No. 73 of 1937. In this application the Court in the first instance directed the decree -holder to file a draft sale proclamation and after it was filed directed attachment of the properties. It is difficult to see why this order of attachment was made notwithstanding that the properties were already under attachment in E.P. No. 73 of 1937. This petition of 1941, was, however, dismissed ultimately on 10th March, 1941, as batta was not paid for attachment of the property. The direction of the Court that batta should be paid for attachment was an unnecessary direction and the non -compliance with such a direction would not entail the penal consequences contemplated under Order 21, Rule 57, of the Code of Civil Procedure assuming that the effect of dismissing E.P. No. 46 of 1941, would terminate the attachment effected in E.P. No. 73 of 1937. The dismissal, therefore, of E.P. No. 46 of 1941 does not terminate the attachment. Further, as held in Karuppan Chettiar v. : (1939)2MLJ916 , the attachment will cease only if the application on which the attachment is effected is dismissed for default and not when a subsequent application was dismissed for default. For these reasons, it must be held that the attachment effected in E.P. No. 73 of 1937 still subsists. As the petitioner purchased the properties which were already attached in pursuance of the Rangoon decree, he should be deemed to be a representative of the judgment -debtor under Section 47, Civil Procedure Code as held by a Bench of this Court in Seetharama Chettiar v. Chidambaram Chettiar, (1933) 63M.L.J. 941 :, I.L.R. 56 Mad. 447.

(2.) THE decision of the lower Court is correct and this civil revision petition is therefore dismissed with costs.