KRISHNA AYYANGAR Vs. MOHIDIN SAHIB TOWTHER

JUDGEMENT

(1.) The question raised turns upon the effect of the order, to which I shall presently refer, dismissing the plaintiff's execution petition. The plaintiff filed a suit against one Thooru Padayachi and attached the latter's properties before judgment. Subsequent to his obtaining a decree in the Court of first instance, he filed in due course an execution petition and attached the properties again. Muthuswami, the father of Thooru Padayachi, preferred a claim on the ground that the properties were his self-acquisitions and that his son had no interest in them. It must be mentioned that by then Thooru Padayachi had died; but the Court, holding that the effect of the attachment previous to Thooru Padaya-ehi's death was to suspend the operation of the rule of survivorship, decided (the father's plea as regards the properties being his self acquisitions having been negatived) that Thooru Padaya-chi's half share was liable for the debt. Prom this decision, Muthuswami filed an appeal, which, I may mention, abated on his death; and nothing turns upon it. But the facts that have a bearing on the question to be decided may be shortly stated. The claim of Muthuswami was negatived by the trial Court on 24 November 1924. On the same date the plaintiff's execution petition was adjourned to 9th December 1924 for further steps being taken. The case was taken up on 10 instead of the 9 and adjourned to the 13th. On the latter date the following order was made: Sale papers in one week more. Jt is said that the party was ill. Adjourned to 23 December, 1921.

(2.) By some error the execution petition instead of being taken up on 23 December was disposed of on 16 Jan-nuary 1925 by an order, which runs thus: Not taken by mistake on 23 December 1924. Sale papers not filed. Dismissed.

(3.) The question to be decided, is, what is the effect of this order? On 4 May 1925 the defendant purchased the properties from Muthuswami, and the plaintiff contends that the attachment continued notwithstanding the order referred to above and that no valid title therefore passed to the defendant. The plaintiff accordingly seeks a declaration that the properties are liable to be attached in execution of the decree obtained by him. Order 21, Rule 57, Civil P. C, reads thus: Where any property has been attached in execution of a decree but by reason of decree-holder's default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date Upon the dismissal of such application the attachment shall cease.