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Ardeshir Nusserwanji Dossabhoy Vs. Usman Gani Memon - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Case NumberSecond Application No. 925 of 1927
Judge
Reported in(1929)31BOMLR1101; 122Ind.Cas.847
AppellantArdeshir Nusserwanji Dossabhoy
RespondentUsman Gani Memon
DispositionAppeal allowed
Excerpt:
.....of darkhast for failure to give security-attachment ceases to exist.;order xxi, rule 67, of the civil procedure code, applies to property attached before judgment under order xxxviii, rule 11, of the code.;hence, where a property is attached before judgment and the decree-holder applies to execute his decree without fresh attachment but fails to furnish security and the darkbast is dismissed the dismissal operates to pat an end to the attachment, under order xxi, rule 57.;meyyappa chettiar v. chidambaram chettiar (1923) i.l.r. 47 mad. 483 f.b. followed.;ganesh chandra adak v. banwari lal ray (1912) 16 c.w.n. 1097 and bohra akhey ram v. basant lal (1924) i.l.r. 46 all. 894 dissented from. - - he failed to do so, and the darkhast was struck off on november 22, 1923. 3. on february 7,.....madgavkar, j.1. the question in this appeal is whether order xxi, rule 57, civil procedure code, applies to property attached before judgment under order xxxviii, civil procedure code. the trial court held that it did; the lower appellate court, that it did not. the purchaser from the original judgment-debtors appeals.2. the property in suit consists of a house at panchgani, which was attached before judgment by the plaintiff in suit no. 343 of 1916 in the court of the first class subordinate judge, poona. the suit was decreed on march 6, 1917. on october 31, 1918, an application was made by the decree-holder to the decreeing court for transfer of the decree to the court of wai, in the satara district, for execution, and was granted. on october 3, 1922, the decree-holder filed a darkhaet.....
Judgment:

Madgavkar, J.

1. The question in this appeal is whether Order XXI, Rule 57, Civil Procedure Code, applies to property attached before judgment under Order XXXVIII, Civil Procedure Code. The trial Court held that it did; the lower appellate Court, that it did not. The purchaser from the original judgment-debtors appeals.

2. The property in suit consists of a house at Panchgani, which was attached before judgment by the plaintiff in suit No. 343 of 1916 in the Court of the First Class Subordinate Judge, Poona. The suit was decreed on March 6, 1917. On October 31, 1918, an application was made by the decree-holder to the decreeing Court for transfer of the decree to the Court of Wai, in the Satara District, for execution, and was granted. On October 3, 1922, the decree-holder filed a darkhaet in the Court of the Subordinate Judge of Wai for sale of the attached property. All the decree-holders were minors, and the Court of Wai ordered the darkhastdar guardian to give security. He failed to do so, and the darkhast was struck off on November 22, 1923.

3. On February 7, 1924, the decree-holders filed the present darkhast, originally for attachment and sale of movable property, and amended on April 12, 1924, for attachment of the property now in question, The property was not attached till January 10, 1925. The appellant who had purchased the property on August 19, 1924i, applied to raise the attachment and obtained an order in his favour on February 21, 1.925. The decree-holder now seeks to sell the property without further attachment on the strength of the attachment before judgment in 1917.

4. The contest as between the decree-holder respondent, absent in this Court, and the purchaser appellant obviously turns on the question whether the attachment before judgment was or waB not subsisting on the date of the purchase, that is, on August 19, 1924. That question in its turn depends upon whether the provisions of Order XXI, Rule 57, Civil Procedure Code, applied to the darkhast of 1922, in which case the attachment before judgment has ceased and the appellant must succeed.

5. An attachment before judgment enures even after the decree : pallonji Shapurji Miatry v. Edward Vaughan Jordan I.L.R(1888) . Bom. 400 and Sewdut Ray v. Sree Canto Maity I.L.R(1906). Cal. 639 . Where the property is under attachment before judgment, under Order XXXVIII, Rule 11, Civil Procedure Code, it is not necessary upon an application for execution to apply for a re-attachment. The property can be sold without such an attachment. That was in fact what the decree-holder sought to do in the darkhast of 1922 when he did not apply for a fresh attachment. Where a plaintiff who has obtained an attachment before judgment obtains a decree, he will presumably wish and apply immediately to execute it. The Court by a second attachment after judgment would do nothing more than it has done by the previous attachment before judgment. That presumably is the raison decree of Order XXXV11I, Rule 11, Civil Procedure Code. The Wai Court imposed a condition upon the attaching decree-holder for security with which he failed to comply. It is difficult to hold that the same Court which imposes a condition in one breath upon a subsequent order, would maintain the attachment without security after default of such a condition and dismissal of the darkhast for default.

6. The words 'has been attached in execution of a decree' in Order XXI, Rule 57, Civil Procedure Code, have been interpreted by the Courts in two ways. The narrower construction is that the attachment must have been after and expressly in execution of the decree. The wider construction is that by virtue of Order XXXVIII, Rule 11, Civil Procedure Code, it has become attached in execution of a decree, even though the date of the actual attachment might have been before judgment, I agree with the latter and not with the former construction, There appears no reason why the legislature should prefer a decree-holder who has been in default merely because he has obtained attachment before judgment to a decree-holder who is in default who has obtained an attachment after the decree. The narrower construction adopted by the Calcutta High Court in Ganesh Chandra Adah v. Banwari Lal Ray (1912) 16 C.W.N. 1097 followed by the Allahabad High Court in Bohra Ahhey Ram v. Basant Lal I.L.R(1924). All. 894 and previously by the Madras High Court in Venkatasubbiah v. Venkata Seshaiya (1918) I.L.R. 42 Mad. 1 has now been given up in favour of the wider construction by the Madras High Court by a majority of the Full Bench in Meyyappa Chettiar v. Chidambaram Chettiar I.L.R(1923) . Mad. 483 The judgment of Ramesam J. is exhaustive on the point, and agreeing as I do with the reasoning of Ramesam J. at page 502 and Coutts Trotter J. at p. 498, I am of opinion that on the dismissal of the darkhast by reason of the decree-holder's failure to give security, the attachment before judgment which was then the only attachment under which the property could be sold, must be held to have ceased under Order XXI, Rule 57, Civil Procedure Code.

7. In this view the appeal is allowed, the order of the lower appellate Court is set aside and the order of the Subordinate Judge is restored with costs throughout on the respondents.


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