DILDAR HUSAIN Vs. SHEO NARAIN

JUDGEMENT

(1.) This appeal arises under the following circumstances. Certain property was attached in execution of a simple money decree as far back as the year 1914. Various objections were raised. The property, which consisted of a house, had been sold and purchased by an auction purchaser. It turned out that the whole house should have not been sold. The auction-purchaser naturally complained that he bad bid for a whole house and not a part of a house, and in the end an order was made by the Court executing the decree to the following effect: "The sale is set aside. The application for execution is struck off. The attachment will remain." Further applications were made for execution of the decree, but no application was made in respect of the property now in dispute which consists of a part of the house to which we have already referred. Eventually in the year 1916 a further application in execution was made and it was asked that (the saleable ?) portion of the house should be sold. An objection was raised on behalf of the respondent, Sheo Narair, that he had purchased (that ?) portion of the house in the year 1916. The decree-holder replied that the attachment was still subsisting and that, therefore, the judgment-debtor could convey no title to Sheo Narain as against the decree-holder. This contention met with the approval of the Court of first instance. In appeal the learned District Judge held that no attachment as against this property was subsisting in the year 1915 when the Sale was made. He, therefore, remanded the case in order that the Court below might try whether or not the sale was a bona -fide sale to Sheo Narain, and other issues. The present appeal is against the order of remand, and it has been strenuously urged that the attachment still subsisted in 1916 by virtus of the order that was made in the year 1914, to which we have already referred. I think the view taken by the lower Appellate Court was correct, Rule 57 of Order XXI of the Code of Civil Procedure is as follows: 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, 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.

(2.) In my opinion the order of the Court below amounted to a dismissal of the application for execution. It certainly, was not an adjournment. It, therefore, seems to me to follow that if the application can be said to have been dismissed by reason of the "decree-holder s default," the attachment ceased upon the dismissal of the application. It is. contended that there was no "default" on the part of the decree-holder. In the present case it seems to me that there clearly was a default. The decree-holder, owing to the confusion as to the property and the sale, was unable to proceed with that application and was determined to make a fresh application for execution in repeat of this property, if so advised, and which fresh application he eventually made. It was contended that the default of the decree-holder" means only those oases in which the decree-holder fails to put in an application or fails to deposit fees or some such matter, and in support of this contention the following oases have been quoted, Karaturi Satyanarayana v. Gopisetti Narayanaswami 38 Ind. Cas. 300 : 21 M.L.T. 88 : 5 L.W. 204 and Valiakath Puthiah v. Manaknal Parameswaran 35 Ind. Cas. 240 : 3 L.W. 601. I see no reason why this restricted meaning should he given to the words in the rule. Previous to the passing of the present Code of Civil Procedure, there was considerable conflict as to the effect of "striking off," or in other words, dismissing an application for execution It was to put an end to this conflict that an alteration was made by the present Code, The exact point arose in the case of Namuna Bibi v. Roshan Meah 9 Ind. Cas. 568 : 38 C. 482 : 16 C.W.N. 428 : 13 C.L.J. 621, in which case I think it was rightly decided that the words in the rule were not restricted to default of appearance or matters of that description. It really means a failure to do what the decree-holder was bound to do, that is, to go on with his application and have the property sold. I am supported in this view I think by the provision in the rule itself that in a fitting case the application for execution can be adjourned, in which case of course the at tachment could be maintained. I would dismiss the appeal. Tudball, J.

(3.) I fully agree. I think a little more stress should be placed upon the actual facts of this case. The whole house was sold by mistake instead of only a share therein on the 24th October 1914. The sale was set aside at the request of all the parties concerned. This decree had been originally passed in the Court of Small Causes at Lucknow, and it had been transferred for execution to the Court of the Munsif in Cawnpore. When the sale was set aside the Munsif called upon the decree-holder to proceed with his application. In reply, to this on the 10th of December 1914 the decree holder said, "let the execution case be dismissed but the attachment be maintained. 1 will put in another application afterwards so that there will, be no legal difficulty." The Court thereupon passed the order as asked by the decree- holder, "the execution case is struck off, the attachment maintained and the costs will be borne by the judgment debtor." After this the Munsif returned the decree as unexecuted to the Lucknow Court. The decree holder again applied to the Lucknow Court to transfer the decree for further execution. A fresh certificate was sent. On the 21st of January 1916 a fresh application for execution was made for the attachment of. a sum of Rs. 250 belonging to the judgment-debtor in the hands of a Pleader. The case was transferred to the Small Cause Court, the sum was realised and the application for execution was struck off on the 8th of March. On the 14th of March another fresh application for execution was made for attachment and sale of certain moveable property. The decree was further partially satisfied and that application for execution was struck off on the 31st of April 1916. Again the papers were returned to the Lucknow Court. Then the property now in dispute was sold by the judgment-debtor to the present respondent. The decree-holder then applied for fresh execution of his decree and he asked to have the share in this house sold. To my mind it is clear, and beyond all doubt, that the decree holder in December 1914 did not wish to proceed further with his then pending application for execution, and it was in fact dismissed by reason of this default in carrying on proceedings, To my mind Order XXI, Rule 57, clearly, and distinctly applies to the present case. The fact that the Court in dismissing the application said the attachment should continue makes no difference. The law distinctly says that in these circumstances the attachment shall cease. The decision in Aziz Bux v. Kaniz Fatima Bibi 15 Ind. Cas. 49 : 34 A. 490 : 10 A.L.J. 48, a decision to which I myself was a party, is placed before me in support of the present appeal. It clearly does not apply, nor is there any discussion in my judgment of the meaning of the word "default." What is said in that judgment cannot be divorced from the facts of that case. In that case there had been a wrong order passed by the High Court dismissing an application for execution. That order was subsequently set aside on review, with the result that the application for execution was never dismissed at all. The ruling has no application to the circumstances of the present case.