SATISH CHANDRA DAS GUPTA Vs. BIRESWAR SUR

JUDGEMENT

(1.) This appeal is directed against the order of Mr. P.C. De, District Judge, Bakarganj, dated 4 April 1938, whereby he reversed the decision of the Munsif, Third Court, Patuakhali. The learned Munsif was dealing with an application under Section 47, Civil P.C. which had been filed by the appellants Satish Chandra Das Gupta and others in Execution Case No. 1562 of 1932. Their contention was that the decree which was the subject-matter of the execution proceedings in the abovementioned case could not be executed against them on account of the fact that an attachment order dated 27 January 1932 should be deemed to have lapsed on account of the dismissal of a previous Execution Case No. 21 of 1931 on 22nd November 1932. The objection filed by the judgment-debtor was allowed by the trial Court, but the decision of the learned Munsif was set aside by the learned District Judge on appeal.

(2.) The main facts with which we are con. cerned in this case are briefly as follows: A man named Hiralal Roy Choudhury obtained a decree against the judgment-debtors Satish Chandra Das Gupta and others in Eent Suit No. 2632 of 1928 on 24 June 1929. On 2nd January 1929, Bireswar Sur, the respondent in this appeal, obtained a decree against Hiralal Roy Choudhury. He put this decree into execution on 7 February 1931 in Execution Case No. 21 of 1931 and during the course of those execution proceedings he attached certain immovable property belonging to Hiralal Roy Choudhury and also the decree mentioned above which Hiralal Roy Choudhury had obtained against Satish Chandra Das Gupta and others. The decree in question appears to have been attached by Bireswar Sur on 27 January 1932. Bireswar Sur thereafter continued the proceedings in Execution Case No. 21 of 1931 as far as they related to the proceedings against the immovable property of Hiralal Roy Choudhury, but in so far as the attached decree was concerned, he took steps under the provisions of Order 21, Rule 53, Civil P.C. for the purpose of executing the decree which had been attached by him. We find that on 23 June 1932 he instituted Execution Case No. 1562 of 1932 with this object in view and, on 11 July 1932, Bireswar Sur's name was substituted for that of Hiralal as the decree-holder of the attached decree. About four months afterwards, namely on 22nd November 1932 an order was recorded by the learned Subordinate Judge who was in session of Execution Case No. 21 of 1931 to the effect that the landlord's fees had not been paid, no steps had been taken by the decree-holder and that the execution case should be dismissed for default.

(3.) It is contended on behalf of the appellants that, by reason of the order dated 22nd November 1932 dismissing for default the Execution Case No. 21 of 1931 the order of attachment dated 27 January 1932 should be regarded as having ceased to be operative and in that view of the case it should be held that Bireswar Sur is not entitled to proceed with the execution of the attached decree in Execution Case No. 1562 of 1932. It appears, from the facts which have been recited above and also from the circumstances appearing from the records of the case that it cannot properly be said that Execution Case No. 21 of 1931 was at all dismissed for default in so far as the proceedings taken in that case in connexion with the attached decree were concerned. As regards that particular matter, Bireswar Sur on 27th January 1932 obtained the order of attachment which he sought and having done so he became automatically authorized to put the attached decree into execution in accord, once with the provisions of Order 21, Rule 53, Civil P.C. "We are therefore no longer concerned with the proceedings in Execution Case No. 21 of 1931 in so far as those proceedings related to the attached decree, but under the authority conferred upon him by the provisions of Order 21, Rule 53 of the Code he proceeded quite properly to institute a fresh Execution Case No. 1562 of 1932 for the purpose of executing the attached decree. It follows therefore that any subsequent dismissal for default of Execution Case No. 21 of 1931 on account of any default of the decree-holder in connexion with matters left outstanding in those execution proceedings after the attachment of the decree cannot be regarded as an obstacle to prevent the decree- holder from executing that decree in a subsequent execution proceeding properly instituted for this purpose under Order 21, Rule 53 of the Code. Having regard to the considerations stated above, I am of opinion that the decision of the learned District Judge is correct. It is therefore affirmed and this appeal is dismissed with costs. The hearing fee is assessed at two gold mohurs.