ABDUL HAMID Vs. ASGHARI BEGUM

JUDGEMENT

(1.) THIS second appeal originally came up for hearing before a Division Bench consisting of wanchoo and Bhargava JJ. For reasons to be stated presently they referred it to a Full Bench.

(2.) THE facts so far as they are material are as follows : in a suit brought by one Mt. Asghari Begum against Abdul Hamid and others some property belonging to the defendants was attached before judgment under Order 38, Rule 6, Civil P. C. The claim was ultimately decreed and Asghari Begum put in an application for execution of her decree. She prayed that the property attached before judgment be sold for satisfaction of her debt. This application was dismissed for default. Thereupon Asghari Begum put in another application for execution which was also dismissed in 1935. The last application for execution was made by her on the 30th April 1938 and therein the prayer for sale of the property attached before judgment was repeated. In due course the decree was transferred for execution to the collector under Section 68, Civil P. C. At this stage the judgment-debtors preferred an objection to the execution of the decree under Section 47, Civil P. C. It was contended on their behalf that, inasmuch as, the two previous applications for execution had been dismissed for default of the decree-holder, the attachment which was effected before judgment ceased to subsist in view of the provisions of Order 21, Rule 57, Civil P. C. In reply, the decree-holder relied on the decision of this Court in -- 'akhey Ram v. Basant Lal', 46 All 894 and contended that Order 21, Rule 57 did not apply to attachments effected before judgment. The objections were thrown but. Accordingly the judgment-debtor went in appeal before the Additional Civil Judge of bulandshahr, but were unsuccessful. Hence this second appeal.

(3.) WHEN the case came up for hearing before a Division Bench in this court, it was argued that the learned Judges who decided --'akhey Ram's case', (46 All 894) had lor the view taken by them relied on the decision of the Madras High Court in -- 'venkatasubbiah v. Venkata seshaiya', 42 Mad 1 which was subsequently oyerruled by the Full Bench decision of the same court in -- 'meyappa Chettiar v. Chidambaram Chettiar', 47 Mad 483 (FB ). It was further pointed out that there was a sharp cleavage of judicial opinion on this point. Our own Court and the High courts of Calcutta and Patna had taken one view, while the view taken in 47 Mad 483 (FB) was followed in Bombay, Sind and Nagpur. Thereupon the Division Bench referred this appeal to a full Bench because (1) reliance in -- 'akhey Ram's case' was placed on the decision of Madras high Court in -- 'venkatasubbiah's case', 42 Mad 1 which was later overruled by a Full Bench decision of the same court; (2) there was difference of opinion among various High Courts on the true scope of Order 21, Rule 57 Civil P. C. and (3) the general importance of the question raised by the objectors.