KUNDANMAL HANSRAJ Vs. MT. AZIZ BEGAM

JUDGEMENT

(1.) THE point which I have to decide is whether the attachment of certain property subsisted after the executing Court had passed an order on the following terms: 19th February 1927. Decree-holder by Mr. Shembeker. Judgment-debtor absent Case struck off as infructuous. Costs on judgment-debtor. Property to continue under attachment.

(2.) IN Dildar Husain v. Sheo Narain [1919] 41 All. 157 Richards, C.J., and Tudball, J. decided that the effect of an order in very similar terms was that the attachment came to an end. I agree with the reasoning contained in this report. When a decree-holder does not desire to proceed with an application for execution, the Court under Order 21, R, 57, Schedule 1, Civil P.C. must either (1) dismiss the application, with the result that the attachment ceases or (2) for any sufficient reason adjourn the proceedings to a future date. The order passed in this case, cannot possibly be interpreted as an order adjourning the proceedings to a future date in spite of the erroneous direction that the property should continue under attachment. It must be held to be an order dismissing the application. In Muhammad Mubarak Husaih v. Sahu Bimal Prasad A.I.R. 1922 All. 62 the order was to the effect that the execution case should, for the time being, be dismissed but the attachment should remain in force. It may well be that an order in these terms though not a proper order, bears a closer relation to an order adjourning the proceedings to a future date than it does to an order finally dismissing the application. The learned Judges, who held that the order which they were considering did not cause the attachment to cease, based their decision on the word " filhal ", for the time being, in the order.