MEYYAPPA CHETTIAR Vs. CHIDAMBARAM CHETTIAR

JUDGEMENT

(1.) The respondent obtained an order for attachment before judgment of certain immoveable property of the judgment-debtor. The petitioner having obtained a decree ex parte against the same judgment-debtor, it was set aside on the latter's application on security being given to the petitioner, and as security, a charge was given over the property attached by the respondent. In due course the respondent obtained a decree as also did the petitioner, and there were other decrees against the same judgment-debtor by other persons. The respondent took out an execution petition in 1916, which came before the Court on several occasions, being adjourned from time to time for the respondent to file the necessary papers, which included an encumbrance certificate. These papers not having been produced, the petition was on the 29 of August 1916 adjourned to the 19 September next for filing the papers, and on that date, the papers not having been filed, the petition was dismissed. Subsequently, the respondent attempted again to bring the property to sale, but this was objected to by the petitioner on the ground that the dismissal of the execution petition in September 1916 put an end to the attachment before judgment, and that therefore the petitioner's security over the property prevailed over the claim of the respondent and the other judgment-creditors, who would but for this security given to the petitioner be entitled to rateable distribution under the rules. The Subordinate Judge has decided against this view and has ordered rateable distribution. The petitioner has brought this Civil Revision Petition, which was ultimately referred to this Full Bench.

(2.) The question to be decided is whether the words " property attached in execution ." in O. XXI, Rule 57, include " property attached before judgment, " when there has been a decree followed by an execution petition for the purpose of bringing the attached property to sale; for so, by the words of that Rule, upon the dismissal of the application for execution by reason of the decree-holder's default rendering the Court unable to proceed further with the application for execution, the attachment ceases. It was argued before us that there has been no default within the meaning of the Rule. But it would seem clear that the Court required papers to enable it to proceed further with the application for execution, and the hearing was adjourned to enable the respondent to file the necessary papers, and it was dismissed because he failed to do so, and I think that that amounts to a dismissal by reason of the decree-holder's default within the meaning of the rule.

(3.) But there remains the important question whether, when the attachment is an attachment before judgment, the effect of the dismissal is to put an end to that attachment. The penalty imposed by Rule 57 is very serious indeed, and, if it applies to an attachment before judgment, the effect of the dismissal of the application would be to give the petitioner, who took his security after the attachment, precedence over the respondent and all the other decree-holders who would otherwise be entitled to rateable distribution; and I cannot believe that so serious a penalty would have been imposed for what may have been the negligence of a vakil or delay caused by some difficulty in obtaining the necessary papers; and I have little doubt that the Court dismissing the petition had not the least idea that the effect of such a dismissal would be to impose such penalty. Indeed the law had by that time been declared in Venkatasubbiah V/s. Venkata Seshaiya (1918) ILR 42 M 1, to be that the dismissal of an application for execution for default had no effect upon attachments before judgment. Although the obvious injustice in this particular case of holding that the attachment before judgment ceases is not a proper matter for consideration, yet the serious injustice that may follow generally on deciding in one way, and the fact that third parties interests may be affected without their having an opportunity to intervene, are legitimate considerations in arriving at the true interpretation of the rule, if the rule is open to alternative constructions. The rule is a penal one and the principle that is applicable is that the matter in question must be brought within the operation of the rule in express terms, or at least by necessary implication. Now, in terms, the rule applies to property attached in execution, and that expression does not include property attached before judgment. But it is argued that property which has been attached before judgment becomes property attached in execution, and ceases to be property attached before judgment, once proceedings are taken to bring that property to sale in execution. But I can find nothing in the Code to justify that view. It is true that, where property has been attached before judgment under O. XXXVIII, Rule 11, no fresh attachment is necessary after decree for the purpose of selling the property. But that, in my judgment, does no more than provide that in such a case there need be no attachment in execution, and that the Court having by reason of the attachment before judgment got control over the property can proceed with the sale. In other words, what the Code permits is that the attachment before judgment can be used, in order to enable the Court to hand over possession of the property to the purchaser at Court auction. Attachment before judgment and attachment in execution are essentially different.