SARNAPUDI APPANNA Vs. RAPANTI NARSINGA RAO

JUDGEMENT

(1.) This Civil Miscellaneous Second Appeal arises out of execution proceedings in respect of a decree obtained more than 21 years ago. On 8-12-52 one Appala Naidu obtained a decree against one Raparthi Lakshmina-singarao for money. The present respondents are his legal representatives.

(2.) The plaintiff (decree-holder) filed E. P. No. 44 of 1953 for sale and attachment of immovable properties of the judgment-debtor. Attachment and sale were ordered. On 24-3-1954 E. P. No. 44 of 1953 was dismissed, as the sale had to be stopped for want of bidders. In dismissing the application the executing court directed the attachment to continue for a period of six months. On 23-6-1954, the decree-holder filed again E. P. No. 162 of 1954, This E. P. also met with a similar fate. The sale had to be stopped for want of bidders and the E. P. was dismissed. Attachment was ordered to continue for six months. The decree in the meanwhile came to be transferred to the present appellant. He filed E. P. No. 379 of 1956. The property was again attached at the instance of the transferee decree-holder. On 3-12-1956 the transfer of the decree in favour of the appellant was recognised. On 17-1-1957 attachment of the properties was ordered. On 9-8-1957 E. P. 379 of 1956 was dismissed with a direction that the attachment should subsist. The dismissal was made by reason of the fact of the pendency of the insolvency proceedings against the judgment-debtor. Unnumbered E. P. -- of 1964 and E. A. No. 424 of 1964 were filed by the transferee decree-holder to exclude the time taken by the insolvency proceedings and continue execution proceedings On 6-7- 1965 E. A. No. 424 of 1964 was allowed by the Sub-Court Visakapatnam. The unnumbered E. P. also was numbered as E. P. No. 207 of 1965. As by that time, the judgment-debtor died in the execution petition, there was a prayer to add the legal representatives of the deceased judgment-debtor and also order attachment and sale of the properties. On 7-10- 1966 the Sub-Court. Visakhapatnam, ordered the properties to be attached by 28-11-1966. The attachment was effected and further steps were ordered thereon. On 24-10-1968 the E. P. was dismissed for the default of the transferee decree-holder. The decree-holder thereupon filed E. A. No. 642/1968 for restoration of the E. P. dismissed for default. On 7-12-1968 E. P. 20V of 1965 was restored. Subsequently there was a change of jurisdiction in respect of the properties attached. The High Court in C. R. P. No. 1410 of 1989 had directed that the execution proceedings from the Visakhapatnam be transferred to the Vizianagaram Court. In Vizianagaram, the transferred E. P. was numbered as E. P. No. 22 of 1971. Even when the terms of the sale of the properties were about to be settled, the judgment-debtors filed a memo objecting to the sale on the ground that the earlier E. P. No. 207 of 1965 was dismissed for default of the decree-holder in the Visakhapatnam Court and after it was restored, there was no attachment again made and that therefore the sale proceedings could not be ordered. The contention was when E. P. No. 207 of 1965 was dismissed for the default of the decree-holder the attachment had also ceased and that the restoration of the execution petition did not have the effect of restoring the attachment also. The contention of the judgment-debtors had found favour with the Subordinate Judge, Vizianagaram. He was of the view that when the Execution Petition which was dismissed for default was restored, it could not be presumed that the attachment also revived particularly when the Execution Petition was dismissed for default of the decree-holder and the attachment had ceased. He, therefore, ordered a fresh attachment.

(3.) The aggrieved transferee decree-holder had preferred an appeal to the Court of the District Judge, Visakhapatnam. It was noticed by the learned Judge, that even by the date the attachment was ordered at the instance of the transferee decree-holder in E. P. No. 207 of 1965 the attachment effected in the prior E. P. No. 379 of 1956 did not cease and that in effect the property was re-attached in E. P. No. 207 of 1965. He posed the question, whether by reason of the dismissal of E. P. 207 of 1965 for default of the decree-holder and its subsequent restoration to file, the continuance of the earlier subsisting attachment effect on the prior E. P. No. 379 of 1956 was in any manner effected. On this point, the learned Judge had correctly held that the order in E. P. No. 207 of 1965 to attach the properties which were already attached in the earlier E. P. was redundant. He also expressed the opinion that the parties and the lower court had lost note of the fact that the attachment made in E. P. No. 379 of 1956 did not cease. But the learned Judge expressed the view that the appeal to the District Court was not maintainable, upholding a preliminary objection raised on behalf of the judgment-debtors. He considered the combined effect of Section 2 (2) of the Code of Civil Procedure which defined a decree and Section 47, C.P.C. and thought that the order of the Court below did not amount to a decree and therefore no appeal lay. He was of the view that the appeal before him was only against the order of the lower court directing the attachment of the properties in execution proceedings. Though on merits, he expressed the view in favour of the decree-holder, he had dismissed the appeal as not maintainable.