UNNAMALAI AMMAL Vs. AMBA BAGHYATHAMMAL

JUDGEMENT

(1.) This appeal arises out of proceedings by way of a claim to properties attached in execution of a decree. The decree which gave rise to the claim proceedings was a small cause decree in favour of the husband of the present plaintiff and against defendant 2 who is the husband of defendant 1, the appellant. Execution proceedings were first taken by the plaintiff's husband to attach the property which was claimed exclusively by defendant 1, wife of the judgment- debtor, as her own, in virtue of a will. After the dismissal of the claim petition, the decree- holder, i.e. the plaintiff's husband, died and an order was passed by the executing Court: "Decree-holder dead. Petition dismissed." The main question in the present appeal is whether this order has the effect of raising the attachment on the land claimed by defendant 1. Evidently, the parties themselves thought that it had this effect, for, after the death of her husband, the plaintiff as his heir filed a fresh execution petition and applied for a fresh attachment. Against this attachment a fresh claim was preferred by defendant 1 and the executing Court apparently thought that there was no infirmity in this claim by reason of the prior proceedings and the claim was allowed. Hence this present suit.

(2.) Now the dates on which these proceedings took place threw a considerable light on the intention of the Court which passed the order dismissing the first claim petition. The dismissal was on 9 December 1929. The plaintiff's husband died some time after that date and before June 1930. On 9 June 1930 the death was reported to the Court and the first execution petition was consequently dismissed. On 19 June 1930 a fresh execution petition with a fresh application for attachment was filed by the plaintiff. The significance of these dates is that in September 1926 the decision reported in Palaniappa Chettiar V/s. Valliammai Achi (1927) 14 A.I.R. Mad. 184 held that the legal representative of a deceased decree-holder could not continue the execution petition filed by the deceased decree-holder but must file a fresh petition. Though the correctness of this ruling was doubted at least as early as 1928, it was not overruled until the decision of the Full Bench in Venkatachalam Chetti V/s. Ramasami Servai (1932) 19 A.I.R. Mad. 73 which was in September 1931. It may therefore, in my opinion, be inferred that the District Munsif who automatically dismissed the petition on a report of the death of the decree-holder, was passing an order according to the law as it was then understood by the Madras High Court with reference to the decision in Palaniappa Chettiar v. Valliammai Achi (1927) 14 A.I.R. Mad. 184 The point is of importance in that if the executing Court held the view that under the law the legal representative of a deceased decree-holder had a right to continue the execution petition, the only possible interpretation of this dismissal order would be that it was one of those dubious orders passed for statistical purposes which in accordance with the accepted view of the law would not have the effect of putting an end to the execution petition or the attachment thereunder. In my opinion, having regard to the fact that at that time the decision of the Bench in Palaniappa Chettiar V/s. Valliammai Achi (1927) 14 A.I.R. Mad. 184 was a clear authority so far as this High Court was concerned that it was not open to the legal representative of a deceased decree-holder to continue the same execution petition, it must be inferred that the executing Court dismissing this petition on a report of the death of the decree-holder, intended not merely to adjourn the petition, showing it as a dismissal for statistical purposes, but intended to dismiss the petition judicially as one which could no longer be prosecuted owing to the death of the party.

(3.) Now, it seems to me clear that if the effect of this order was to raise the attachment, the order having been passed within less than, one year after the dismissal of the first claim petition filed by defendant 1, it cannot be held that defendant 1's subsequent claim petition under the fresh attachment was barred by her failure to file a suit contesting the correctness of the dismissal of her former claim. Obviously, there was nothing to be gained by a suit contesting the correctness of an attachment which owing to extrinsic circumstances had ceased to operate and I do not think that it can be held that when the attachment has been cancelled by some other agency than a suit by the defeated claimant, it is incumbent upon the claimant to file a suit to remove an obstacle which no longer exists. If I authority is needed for this self-evident proposition it will be found in Kumara Goundan V/s. Thevaraya Reddi (1925) 2 A.I.R. Mad. 1113 and Habib Ullah V/s. Mahmood . The only question therefore is whether this attachment continued to subsist after the death of the decree-holder and the dismissal of his first execution petition. No specific ruling on this point has been cited before me, but the appellant relies on certain incidental observations in the case in Venkatalakshmamma v. Seshagiri Rao (1931) 18 A.I.R. Mad. 303 at p. 631. In that case Reilly J. was discussing the effect of the decision in Palaniappa Chettiar V/s. Valliammai Achi (1927) 14 A.I.R. Mad. 184 the correctness of which he doubted. He points out that this decision is in conflict with the long established practice of the Courts and would involve certain inconvenient and even unjust consequences. He observes: If an execution petition is in progress and an attachment has been made and then the judgment-debtor dies, according to the principle adopted in Palaniappa Chettiar V/s. Valliammai Achi (1927) 14 A.I.R. Mad. 184 that petition comes to an end and the attachment must go.