RAMACHANDRA GOCHHIKAR Vs. RAMACHANDRA BISWAL

JUDGEMENT

(1.) THE decree-holders in a money suit are the petitioners in this revision application. They obtained the decree in question for a total amount of Rupees 3235-3-3 pies on 8-3-57 against judgment-debtors Janmejoy Swain and Pata Dei. During the pendency of the suit there was an attachment before judgment against the properties which are involved in the present proceedings. Execution Case No. 50 of 1967 was filed by the decree-holders, as the decree had remained unsatisfied. As there is no objection that Execution Case No. 50 of 1967 was barred by limitation it must be taken as an accepted position that there had been other execution cases intervening as steps in aid. Mr. Patra for the opposite parties wanted to raise objection on that score mainly on the ground that the decree-holders have not placed materials to prove other steps in aid. For the purposes of the present revision application, I have ruled out such contention on the ground that objection on such score was not taken in the court below and, therefore, such objection must be taken as barred by constructive res judicata. This revision petition will, therefore, proceed on the basis that there was an attachment before judgment and that Execution Case No. 50 of 1967 was within limitation and maintainable.

(2.) IN this execution case the opposite parties and another applied under Order 21, rule 58, Civil P. C. for release of certain specific items of properties on the allegation that these properties had been purchased by them under different sale deeds (Exts. 1, 3, 4, 7 and 9) between the period 10-5-1962 and 23-5-1962. It is not disputed by the decree-holders that on these registered sale deeds one of the decree-holders on behalf of all gave consent for the sale. The learned Subordinate Judge as the executing Court went into the matter and came to hold that as one of the decree-holders himself had written the endorsements and had signed them, it must be taken that they had waived their right under attachment and these properties which have now been sold to third parties cannot be proceeded against in the execution case and, therefore, while rejecting the claim of one person who is not a party to this revision application on the ground that consent of the decree-holders had not been proved in that case he directed release of the properties described in schedules Ka, Kha, Ga, Gha and cha in the execution petition which are covered by the sale deeds Exts. 1, 3, 4, 7 and 9 respectively relating to the opposite parties in this Court.

(3.) AGGRIEVED by the said order of release the decree-holders are now the petitioners. Three questions have been raised by Mr. Mohapatra in the" revision application. They are:- (1) The attachment having been made before judgment the relevant provision to apply is Order 38, Rule 11. Civil P. C. As attachment subsisted, there could be no sale until the Court lifted the attachment. (2) Waiver on the part of the decree-holders has not been established and on the materials on record the learned Subordinate Judge was not justified to hold that there was waiver. In any event the consideration money under these sale-deeds having not either been paid to the decree-holders or deposited in Court for satisfaction of the execution case the learned Subordinate Judge should not have released the property. (3) Keeping in view the language of Order 21, Rule 59, Civil P. C. it must be held that these claimants were not entitled to maintain the claims in the executing Court. Mr, Patra, for the opposite parties, raises a contention that in view of the language of Order 21, Rule 57, Civil P. C. and on the basis that there must have been intervening execution cases which should also be taken to have been dismissed under some contingency or other, applying Order 21, Rule 57 (2), Civil P. C. , it must be held that attachment, even if made before judgment, had lapsed by the time of the sales in 1962. The submission of Mr. Patra, therefore, would raise a fourth question for examination. Each of these questions requires careful examination as they have substantial bearing on the points in issue.