RAMCHANDRA KASHINATH BELSARE Vs. VASANT KASHINATH BELSARE

JUDGEMENT

(1.) AN interesting or rather novel interpretation to the provisions of Order XXI, Rule 57 of the Code of Civil Procedure was canvassed in this proceeding. The dispute centres around the short question as to whether or not an order of attachment in relation to property continues up to the period of limitation or whether, that order, if it is not vacated by order of a Court continues indefinitely and consequently confers on the decree holder the right to execute the decree at a subsequent point of time. A few dates are material for this purpose.

(2.) PURSUANT to the filing of Civil Suit NO. 397 of 1959, which was a partnership dispute for dissolution and accounts, the trial Court passed a final decree on 31. 7. 1964 which was signed by the Judge on the same date. It needs to be mentioned that the stamp paper was not furnished for, as long as, four years, and that consequently, the decree was drawn up only some time in the year 1968. In the year 1973, the decree holder who is the present petitioner before me filed an application for execution. Certain proceedings such as the initial notices etc. continued until 30-1-1975, when the decree holder and his pleader were absent and it was found that the process fee for the sale warrant and proclamation had not been paid in time. The Court, therefore, passed an order stating that the darkhast is disposed of as infructuous. The last sentence of the order is: Attachment to be continued, costs on judgment debtor. Thereafter, neither of the parties filed any application in respect of this darkhast until Darkhast No. 41 of 1977 was filed by the decree-holder before the trial Court. This was opposed by the present respondents on the ground that it was barred by limitation in so far as the original decree which was passed on 31-7-1964 was more than 12 years old on the date of filing of the present darkhast. The trial Court, after hearing the parties, passed an order on 11-2-1981, upholding the plea of limitation and it is this order that is challenged on certain points of law by the decree-holder through the present petition.

(3.) THE first submission canvassed by Mr. Hushing, learned Counsel appearing on behalf of the petitioner is to the effect that admittedly, the trial Court had continued the order of attachment even after 30-1-1975 when it disposed of the previous execution proceeding. Mr. Hushings submission is that the proceedings were, therefore, not finally concluded and he drew support from the fact that the judgment debtor did not approach either the trial Court or the appeal Court and got that order vacted. He contends, therefore, that the subsequent application filed by him viz. , the present one is for all intends and purposes, a revival or extension of the earlier proceeding. As regards the last part of the argument, I need dispose of it forthwith in so far as admittedly, the present proceeding was a fresh application for execution and was not an application for restoration of the earlier proceedings. Neither of the parties nor the trial Court treated it as such and, therefore, there can be no question of advancing the submission that the present application should be treated as one for restoration.