ATHIPATLA SESHAYYA Vs. KONDAVEETI SARAYYA

JUDGEMENT

(1.) The point for determination in this Revision Petition is whether E.P. No. 327 of 1957 filed in Small Cause Suit No. 76 of 1945 (Addiitional District Munsif's Court, Guntur) is pending and whether the decree-holders could proceed against the judgment-debtor for realisation of the balance of amount due under S.C. No. 76 of 1945.

(2.) The material facts leading to the filing of this revision petition need a brief mention to appreciate the arguments advanced in support of the contentions of the petitioners herein. As against the respondent, the petitioners herein obtained a decree in S.G. No. 76 of 1945 on the file of the First Additional District Munsif's Court, Guntur. Thereafter, E.P. No. 237 of 1946 was filed by the decree-holders praying for attachment of the decree in O.S. No. 27 of 1945 in the same Court by which the judgment-debtor viz., the respondent herein, became entitled to some money. On 13th September, 1946, an order " Attachment effected ; Attachment made absolute " was passed. In order to realise the sums due under the deciee in S.C. No. 76 of 1945 further execution proceedings were instituted in O.S. No. 27 of 1945. An unnumbered E.P. thus came to be filed on 26th February, 1949, but it was rejected as it was not accompanied by the decree copy. It appears that, the decree-holders then filed another unnumbered E.P. in S.C. No. 76 of 1945 and that it was rejected as it was not pressed. The next E.P. was filed on 15th March, 1952, but this time in O.S. No. 27 of 1945, i.e., for the execution of the attached decree. The Court directed that the decree copy in S.C. No. 76 of 1945 should be filed. But as the same was not complied with, it was not numbered and dismissed on 18th August, 1952. This was followed by E.P. No. 1014 of 1955 dated 18th August, 1955, but it shared the same fate as batta was not paid. Subsequently, an E.P. filed on 20th March, 1957 in S.C. No. 76 of 1945 was transferred to the original side. But as no notice was taken to the judgment-debtor, this was dismissed. Again, another E.P. No. 488 of 1957 filed in O.S. No. 27 of 1945 was dismissed on 30th July, 1957, as the sale papers and the encumbrance certificate were not filed. Meanwhile, the E.P. which gave rise to this revision petition, viz., E.P. No. 327 of 1957 has been filed praying for sale of the attached properties.

(3.) It may, at the ouset, be pointed out that the main contention of the judgment-debtor is that, the dismissal of the execution petition filed in O.S. No. 27 of 1945 for default on 18th August, 1952, attracted the operation of rule 57 of Order 21, Civil Procedure Code, and that, therefore, the attachment of the properties not being in force any longer, the execution petition, viz., E.P. No. 327 of 1957 is filed out of tune and is inexecutable. This contention found favour with both the lower Courts. As for the dismissal on 16th March, 1949 of the unnumbered E.P. in O.S. No. 27 of 1945, it was held that it should be considered as innocuous. It was pointed out that its dismissal for the reason that it was not accompanied by a copy of the decree cannot attract the provisions of even sub-rule (1) of rule 57 of Order 21, Civil Procedure Code. But, it has been considered that since the dismissal of the subsequent unnumbered E.P. on 18th August, 1952, is for default committed by the decree-holders, the ruling in Venkata Rao, v. Surya Rao Bahadur, (1949)1 M.L.J. 320 : I.L.R.(1950)Mad. 39:A.I.R.1950 Mad.2, is attracted. The effect, therefore, of the dismis a1 of that E.P., on 18th August, 1952, has been stated to consist in the removal of the attachment of the decree as it has ceased and did not thereafter continue. In the result E.P. No. 327 of ig57 has been held to be barred by limitation.