SHRINIWAS VITHAL PAI Vs. HARI SABAJI KAMAT

JUDGEMENT

(1.) These are companion appeals arising out of two suits in which the point is the same and may be disposed of in one judgment. The plaintiff sued for a declaration that the property in suit was not liable to be sold in execution of the decree in Suit No. 250 of 1903 obtained by defendants against the heirs of one Govind Baghunath Pai. The facts are as follows. Suit No. 250 of 1903 was filed by the father of the present defendants against Govind Raghunath Pai, His immovable property was attached before judgment, and on November 11, 1904), a decree for Rs. 4,000 was passed against him, which was confirmed on appeal on February 28, 1906. In 1907, in execution of the decree in Suit No. 190 of 1905 another decree-holder attached and sold properties Nos. 1, 5, 6, 7, 8, 9, and 12, and they were purchased by one Kamat and sold to plaintiff on January 1, 1914. No objection is raised to this in appeal The remaining properties, Nos. 2, 3,4,10 and 11, were sold to plaintiff by the heir of Govind Pai, his daughter in-law, in May 1914. The present defendants had filed two darkhasts in 190 and 1913. In the first darkhast they asked for rateable distribution, and for attachment of movables. Both the darkhasts were disposed of, the second one being dismissed. In 1916 defendants again sought to bring the property to sale, and this resulted in plaintiff's suit for a declaration that the property is not liable for sale. The first Court, the Subordinate Judge of Malvan, grunted the plaintiff the declaration sought, and the decree was confirmed in appeal. Defendants make this second appeal.

(2.) The only point in appeal is whether the property purchased by plaintiff from the heir of the judgment-debtor is liable to sale in execution of the defendants decree against Govind Raghunath Pai. The defendants contention is that the alienation in favour of the plaintiff is invalid because the properties were still under attachment in Suit No. 250 of 1903. The point is one of importance. The question for decision is whether the attachment before judgment in Suit No. 250 of 1903 had come to an end by reason of the dismissal of the darkhasts in 1909 and 1913, that its whether the provisions of Order XXI, Rule 57, are, or are not, applicable to the case. Order XXI, Rule 57, states that: 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, if shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of each application the attachment shall cease. The question is whether this rule applies to attachments before judgment. The plaintiff contends that the defendants having allowed their first darkhast, No. 49 of 1909, to be disposed of, and having done nothing further, the property was freed from attachment under Order XXI, Rule 57, and that by the defendants own conduct and negligence they had shown their intention not to proceed against the property, and hence the attachment came to an end in April 1918, when the darkhast was dismissed.

(3.) The reasoning of the learned District Judge is as follows.