GANESH CHANDRA ADAK Vs. BANWARI LAL ROY

JUDGEMENT

(1.) The point which has been raised for our determination in this appeal is whether a decree- holder, who has prior to the decree obtained an order for attachment before judgment and after decree has made one application for execution which has been dismissed, can afterwards in execution of the decree sell the property of the judgment-debtor in respect of which the order of the attachment had issued without obtaining a fresh order for attachment under Order XXI, Rule 57, of the Code of Civil Procedure. In this case, the decree-holder had applied under the provisions of Rule 5 of Order XXXVIII, Civil Procedure Code, and had obtained an order of attachment before judgment. Afterwards, he was granted a, decree and put in an application for execution. Sub-sequently, in consequence of his default-., that application was dismissed and another application was made for execution of the decree by sale of the property and this is now the subject of the present appeal.

(2.) Both the lower Courts held that the order of attachment before judgment subsisted after judgment had been given and that the order of attachment relieved the decree-holder from the necessity of attaching the property in execution under Order XXI, Rule 57 of the Code not only in the case of the first application but also in the case of any subsequent application for execution. The learned Pleader, who appears on behalf of the appellant in this appeal, has contended that the view taken by the lower Courts is wrong. He has argued that the attachment before judgment can only be taken to enure to the benefit of the decree-holder for the purposes of the first application for execution and that, where such an application for execution has been made and has been dismissed for default, the decree-holder is bound to proceed under the provisions of Order XXI of the Code. He contends that, in such circumstances, Rule 57 of that Order would apply and that, after the dismissal of the application, it would be necessary for the decree-holder to take out a fresh attachment as the original attachment would have been brought to an end by the order of dismissal. In support of his contention, the learned Pleader has relied on the decision of this Court in the case of Sewdut Roy v. Sree Canto Maity 33 C. 639 : 10 C.W.N. 634 and the decision of the Bombay High Court in the case of Pallonji Shapurji Mistry v. Edivard Vaughan Jordan 12 B. 400. The learned Pleader contends that, because the learned Judges in both those cases held that the attachment before judgment enured and became an attachment in execution, they meant that such attachment enured, only for the purposes of the first application for execution and for no other. There is, however, no such finding in either of the judgments and we are unable to agree with the learned Pleader that that conclusion necessarily follows from the expressions used by the learned Judges who decided those two cases. The learned Pleader has also referred us to the decision of this Court in the case of Nomuna Bibi v. Roshun Meah 9 Ind. Cas. 558 : 13 C.L.J. 621 : 15 C.W.N. 428 : 38 C. 482 and has used as part of his argument the remarks made by one of the learned Judges who decided that case (at page 432) with reference to the necessity of closely adhering to the provisions of Rule 57 of Order XXI. We fully agree with the remarks made by the learned Judge in that case, but we do not think that they can be taken to have any application to the present case. The real point is whether an order for attachment before judgment subsists only for the purposes of the first application for execution or whether it should be taken to subsist for the benefit of subsequent applications as well. In our opinion, such an order for attachment before judgment must be taken to subsist for the benefit not only of the first application for execution but also for subsequent applications; for otherwise, the whole object for which Order XXXVIII, Rule 5, Civil Procedure Code, has been passed would be defeated. If the attachment were to cease after the dismissal of the first application for execution, the judgment-debtor would be at liberty to adopt any of the measures to obstruct or delay the execution of the decree which Rule 5 of Order XXXVIII was framed to defeat. In our opinion, the provisions of Rule 57 of Order XXI have no application to a case in which an order for attachment before judgment has been obtained. The attachment referred to in the concluding passage in that rule is, in our opinion, an attachment made under the provisions of Order XXI and not an attachment under the provisions of Order XXXVIII.

(3.) The result, therefore, is that the judgment and order of the lower Appellate Court are confirmed and the appeal is dismissed with costs, We assess the hearing-fee at two gold mohurs.