VENKITESWARAYYAN Vs. ASWATHA NARAYANAN

JUDGEMENT

(1.) Second and 3 plaintiffs, appellants, are here to contend that the lower Appellate Court erred in holding that Exhibit C, was executed during the pendency of an attachment, effected by a decree-holder, now represented by the 6 defendant. The Lower Appellate Court no doubt was right in holding that the attachment under Exhibit I was not terminated by the dismissal, with which the proceedings closed. It is only necessary to say with regard to that conclusion that it might have been reached more shortly, because the default of the decree- holder referred to in Order 21, Rule 57, cannot, in our opinion, be constituted either by his absence from the sale or his failure to bid at the sale, but must be a default in the discharge of some obligation laid on him by the Code or the Rules framed under it.

(2.) Having reached that conclusion, however, the lower appellate Court did not go on to consider the result of the subsequent proceedings in Exhibit II. Exhibit II was another application for attachment, which was dismissed on 20-7-1914, because the decree-holder failed to produce the schedules called for. A day before that dismissal Exhibit C had been executed, it is urged, during the pendency of an attachment. The plaintiff's contention is that the attachment under Exhibit I was terminated by the order of dismissal of 20-7-1914 and that Ex. C executed the day before that dismissal would become effective, when the attachment came to an end. In this connection reliance has been placed on the reference in Section 64, C.P.C., to a transfer made pending an attachment, as void, as against all claims enforceable under the attachment, the argument being that, when the attachment ceases and there are no longer any claims enforceable under it, there is no reason why the transfer should not be regarded as valid. On the question raised in connection with the proceedings evidenced by Ex. II the lower appellate Court has expressed no opinion.

(3.) We must accordingly call on it for a revised finding on the question whether Ex. C is void because of the order of dismissal included in Ex. II. The lower appellate Court's finding must be returned within six weeks; and seven days for objection. It will on the return of the finding be open to the respondents to argue the question raised by Issue 7 it the trial.