MOTIJHA Vs. JOWALA PRASAD MARWARI

JUDGEMENT

(1.) This is an appeal by the judgment debtor against an order of the Subordinate Judge of Monghyr, dated May 29, 1936, passed in Miscellaneous Cases Nos. 15 and 49 of 1936 in an execution matter. It appears that the property of the judgment-debtor has been sold for a sum of Us, 10,000 for recovery of balance of a decree that was passed against him some time ago. It also appears that during the tendency of the money suit which resulted in this decree under execution, the plaintiff applied for and obtained attachment before judgment against the defendant-judgement-debtor, but this attachment was raised on the objection that certain idol was involved whose she bait the defendant was. The plaintiff having lost his rights which be had secured by attachment before judgment, instituted a suit under Order XXI, Rule 63, Civil Procedure Code, which was decided in his favour with the result that the attachment before judgment was revived. After this revival, the decree-holder proceeded to execute his decree in the year 1933 when the execution in that year proceeded on part satisfaction. For the remaining portion of the decree another execution was started by the decree-holder on November 30, 1934, but in this execution the decree-holder simply proceeded to realize his decree by asking for the arrest of the judgment-debtor and did not make any prayer for execution of the decree by selling any immovable property of the judgment debtor. This execution we are told was dismissed for default on November 22,1935, and the present execution was then lodged on December 6, 1935, in the course of which the properties were sold for a certaim sum which is said to be inadequate in consideration of the real value of those properties.

(2.) Mr. A. P. Upadhaya in presenting this appeal before us has argued that the sale must be held to be void inasmuch as there was no attachment in these execution proceedings of the properties which were actually sold. His argument further is that inasmuch as the decree-holder allowed his previous execution of 1934 to be dismissed for default in November 1935, it must; be held in law that the attachment before judgment which had once failed by reason of an adverse decision in the money suit and which was revived by a decision in a regular suit under Order XXI, Rule 63, came to an end. He relies upon two cases of the Madras High Court reported in Arunachalam Chetty V/s. Periasami Servai 44 M 902 : 70 Ind. Cas. 439 : AIR 1921 Mad. 163 : 41 MLJ 252 : (1921) MWN 569 : 14 LW 645, and in Meyyappa Chettiar V/s. Chidambaram Chettiar 47 M. 483 : 79 Ind. Cas. 144 : AIR 1924 Mad. 494 : 46 MLJ 415 : 34 MLT 118 : (1924) MWN 392 and also on a decision of the Bombay High Court in Hari Sabaji V/s. Srinivas Vithal 55 B 693 : 134 Ind. Cas. 972 : AIR 1931 Bom. 550 : 33 Bom. L.R 1130 : Ind. Rul. (1931) Bom. 558. The decision of the Calcutta High Court reported in Shibnath Singh V/s. Saber- ud-din Ahmad 56 C. 416 : 119 Ind. Cas. 113 : AIR 1929 Cal. 465 : Ind Rul.(1929) Cal 721, has been brought to our notice. In that Calcutta case Sir George Rankin has clearly laid down after an examination of the very rulings relied upon by the learned Advocate before us that there is nothing, however, in Rule 11 of Order XXXVIII, to give colour to the view that for the purposes of Rule 57 of Order XXI, attached in execution is a phrase that covers attachment before judgment.

(3.) We respectfully agree with this exposition of law. The very language of Rule 57 of Order XXI, is abundantly clear when it enacts: "Where any property has been attached in execution of a decree but by reason of the decree-holder's default the Court is unable to proceed further with the application for execution...Upon the dismissal of such application the attachment shall cease."