RAMKISHAN Vs. MODULAL

JUDGEMENT

(1.) -

(2.) THIS is a plaintiff's second appeal arising out of a suit under O. XXI, r. 63, Civil P. C. Originally the suit was instituted by Bherudan, who died during the pendency of the suit and the present appellant was substituted in his place. Bherudan obtained decree for Rs. 552/9/- besides costs from the Court of Munsiff, Baran on 27-8-1948 against Jagannath, (defendant No. 1), who too died during the pendency of the suit and is now represented by his widow Mst. Ramnathi, respondent No. 2 and other heirs. In execution of the said decree Bherudan got attached the house in dispute situated in Baran on 13-7 1951. Thereafter, the decree-holder and the judgment-debtor entered into a compromise on 2 8 1951 by which it was agreed that the judgment-debtor would pay the decretal amount by a monthly instalment of Rs. 12/- and on his failure to pay two instalments, the decree-holder would be entitled to levy execution for recovery of the whole amount. It was further agreed that the house already attached would continue to remain under attachment till the whole of the decretal amount was paid. On the same day, the Executing Court recorded the compromise and closed the execution case. A certified copy of the order dated 2 8-1951 recording the terms of the compromise, and directing continuance of attachment till all the instalments are paid is marked Ex C. 4.

(3.) IN Lachhiram vs. Emperor (5) it was observed that the order, directing the execution case to be dismissed for the time being and the attachment to be maintained was not a proper order for the court to have passed, still the learned Judges were not prepared to treat it as a nullity and as having no effect upon the parties between whom it was passed. It was also held that no fresh attachment was subsequently necessary. From the body of the judgment, it appears that the court below in that case found itself unable to proceed further by reason of the default of the decree-holder. Consequently the Court ought to have dismissed the application or may have adjourned the proceeding to a future date. The learned Judges found that the order passed by the lower court was in contravention of the provisions of O. XXI, r. 57 Civil P. C, yet they held that no fresh attachment was necessary and the Court could proceed with the sate of the property without any fresh attachment. It may be observed that the learned Judges treated the order of the Executing Court not as one of dismissal of the application but as one of adjour-ning the case sine die. Besides that, with utmost respect, I find it difficult to subscribe to the view that even though the order of the Executing Court was illegal yet it could not be treated as a nullity and as having no effect upon the] parties between whom it was passed.