VIJAYADAS HANUMANTDAS GUDIHAL Vs. SHEKHARAPPA ANANTAPPA SAVANUR

JUDGEMENT

(1.) THIS appeal raises a somewhat novel point with regard to the right of a decree-holder to attach the judgment-debtor's property before the decree becomes executable.

(2.) THE facts are shortly these:--On July 11, 1932, the present appellant, who was the defendant in the suit, obtained, a money decree against one Basangowda for Rs. 370. Under the decree the amount was payable within six months. It is common ground between the parties that by virtue of that direction the decree-holder was not entitled to file an application for execution before the termination of that period. On August 9, 1932, before the period of six months expired, the present defendant filed a darkhast against his judgment-debtor in which he only asked for the relief of attachment of the judgment-debtor's immoveable property. That prayer seems to have been made on the ground that the judgment-debtor was going to alienate his property to defeat the decree-holder's claim. On August 31 the Court passed an order attaching the judgment-debtor's immoveable property. THEreafter, on September 27 the Court passed a further order directing the attached property to be sold and issuing notice under Order XXI, Rule 66, of the Civil Procedure Code. It is not explained under what circumstances that order came to be passed when there was no prayer for sale in the darkhast itself. However, the order for sale was passed, and there is an endorsement on the darkhast on October 11, 1932, that process fees for the notice were not paid. THEreupon on November 8 the Court passed an order" Not prosecuted. Dismissed. Attachment to continue". Several months after that order, i.e. on July 10, 1933, the present plaintiff purchased some of the immoveable property, which was attached by the Court, from the heirs of Basangowda, the judgment-debtor for Rs. 3,000. THEreafter, another darkhast No.458 of 1933 was filed by the present defendant for the attachment and sale of the judgment-debtor's immoveable property including the property sold to the present plaintiff. THE plaintiff intervened and objected to the attachment and sale of the property sold to him by the heir of the judgment-debtor. His objection was, however, overruled by the executing Court, with the result that he filed the present suit for a declaration that the suit property was not liable for attachment and sale in execution proceedings of the decree obtained by the defendant, and for the alternative relief of a declaration that the property was liable to be sold subject to the mortgage incumbrance of Rs. 2,000 which the plaintiff had paid to a mortgagee in satisfaction of his mortgage on the attached property. THE defendant contended that the sale to the plaintiff was hollow and that it cannot avail him as it was subsequent to the attachment of the property by him in his first darkhast, which was continued even after its dismissal.

(3.) THE defendant has now appealed to this Court, and his contentions are, first, that the order of the Court dismissing the darkhast for non-prosecution and continuing the attachment is not made under Order XXI, Rule 57, and, secondly, that it was competent to him to apply for attachment even before the decree became executable under Section 151 of the Civil Procedure Code.