KISHORE SINGH Vs. UDHYOG MANDIR

JUDGEMENT

(1.) This appeal by the judgment-debtor is directed against the order of the Additional District Judge No. 1. Jaipur City dated 5/11/1973 passed in Execution Case No. 15 of 1972.

(2.) Facts leading to this appeal are as follows: The respondent obtained a money decree against the appellant, judgment-debtor on 23/11/1962. This decree was upheld in appeal by the High Court on 29/7/1970. During the pendency of the suit the decree-holder got the property of the judgment-debtor attached under Order 38, Rule 5, C.P.C. He took out execution application on 3/4/1963 which was dismissed on 31/8/1963 for default. His second application dated 30/8/1971 for execution was also dismissed on 22-172 on account of non-prosecution. The decree-holder then applied for the sale of the property under attachment on 29/3/1972. The judgment- debtor filed an objection that the property cannot be sold as no fresh attachment has been sought. According to him the attachment had ceased to exist after the first execution application was dismissed. There, were other objections as well but I am not concerned with those objections in the present appeal. The learned executing Court held that the attachment before judgment survived for every execution application, and no fresh order of attachment was necessary for proceeding to effect sale. This order has been challenged by the judgment-debtor in this appeal.

(3.) I have heard learned counsel for the parties at length. Various authorities representing the conflicting views were read out before me. Mr. Kasliwal learned counsel appearing for the appellant placed reliance on the view taken up by the Madras High Court in Meyappa Chettiar v. Chidambaram Chettiar, AIR 1924 Mad 494 (FB). This is a decision of Full Bench of five Judges. Three Judges were of the view that the provisions of Order 21, Rule 57 apply to an attachment before judgment which is converted into attachment in execution when the decree passed in the suit is said to be executed. It will be useful to reproduce Order 21, Rule 57 here: