JHORAMA Vs. VISWASARAYI LATCHANNA DORA

JUDGEMENT

(1.) The appellant here is the decree-holder in O.S. No. 68 of 1921. In 1926 the appellant filed an execution petition seeking to attach certain property and obtain orders of attachment. That execution petition was recorded in 1927 with a direction to the appellant to apply by separate application for sale of the attached property. A subsequent application, E.A. No. 49 of 1928, was made in March 1928 and was ordered in July to be "struck off the file to be restored when applied for after the stay is raised," an order having been received from the High Court, where a civil miscellaneous appeal has been filed, to stay execution shortly before this. Unfortunately the disposal of the civil miscellaneous appeal occupied several years, and it was not until 27 April 1934 that the judgment of the High Court was delivered. That judgment runs as follows: The only question for decision is whether the attachment of the several items made on 2nd and 3 February 1926 is according to law. So far as the superstructure of the houses described in items 4 to 6 are concerned, no objection to the validity of the attachment is raised before us and the attachment thereof must be held to be lawful. As regards the other items and the land on which the superstructure stand, they were undoubtedly unenfranchised Dorathanam service inams on the dates of the attachments and therefore not liable to attachment. In this view of the case it is unnecessary to decide whether the subsequent order, of Government directing the resumption of the inams was a completed and effective resumption. The attachment of items 1 to 3 and of the lands on which the houses are situate must be set aside and the appeal allowed to this extent.

(2.) About six months after the judgment had been delivered, the appellant applied in E.A. No. 256 of 1934, praying for the restoration of E.A. No. 4 of 1926 to file and for ordering attachment for the second time of the property which had been attached in 1926 and the attachment of which, as we have just seen, had been set aside by the High Court. The learned Subordinate Judge of Berhampore in his order dated 17 October 1935 refused to grant this part of the appellant's application, but permitted him to continue the petition, E.P. No. 49 of 1928, with respect to those items of property the attachment of which had been declared valid by the High Court. This is therefore an appeal by the appellant against that part of the learned Subordinate Judge's order which is against him. The learned Subordinate Judge has recognized the right of the appellant to make this application in 1934 even though the 12 years period laid down in Section 48 of the Code had already expired, and there is no serious contest before us that one if not two execution petitions were not still pending from 1926 to 1928, as there had been no final order disposing of them. The only questions therefore which have to be decided are : (1) whether the High Court in its judgment in C.M.A. No. 234 of 1928 has in effect dismissed these execution petitions so that with respect to the items with which we are now concerned it is impossible to regard them as any longer continuing or being regarded as valid; and (2) whether the circumstances of this case are such that we ought to permit such amendment of these petitions as may be necessary in order; to enable the appellant to proceed further with his execution.

(3.) On the first point we think considerable difficulty might arise if we consider only execution application No. 4 of 1926, but we are of opinion that if E.P. No. 49 of 1928 is taken into account there can be nothing in the judgment of the High Court in C.M.A. No. 234 of 1928 which in any way relates to the prayers in that petition. All that the High Court said was that an attachment effected in February 1926 was invalid. In 1928, the appellant applied for the sale of properties which had been attached in 1926. The High Court has said nothing as to whether if a prayer had been inserted in the petition in 1928 for the attachment of those properties and the attachment had been effected accordingly that attachment would or would not have been valid. That matter as we read the judgment of the High Court, has been left open. The appellant's learned Counsel has therefore requested us to permit him to amend E.P. No. 49 of 1928 by asking for the attachment of the properties now in dispute, a request which he did not make in 1928 itself because at that time an attachment was already in force.