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Laldas Kalyandas Gujarati Vs. Shankar Ramchandra Patil - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberSecond Appeal No. 334 of 1941
Judge
Reported inAIR1943Bom255; (1943)45BOMLR501
AppellantLaldas Kalyandas Gujarati
RespondentShankar Ramchandra Patil
DispositionAppeal dismissed
Excerpt:
civil procedure code (act v of 1908), section 51, 0. xxi, rules 54, 5f-attachment under darkhast-disposal of darkhast-whether attachment continues after disposal of darkhast-order of attachment, how to be drawn-practice.;an attachment levied under order xxi, rule 54 of the civil procedure code, 1908, comes ordinarily to an end when the darkhast in which it was made is disposed of, unless the court otherwise directs.;an order of attachment of immoveable property, properly drawn, ought to limit the order of prohibition so as to extend only until the disposal of the darkhast or further order. - .....it was made, that such an order, on its true construction, must be limited to a period until the darkhast is disposed of or some order is made for the continuation of the attachment. it can hardly be that such attachment is to exist for the life of the judgment-debtor unless expressly raised. in some cases the judgment debt may be discharged out of part of the property attached, and in such a case, if the attachment on the rest of the property is not raised by an order of the court, it can hardly be suggested that it is to continue after the debt has been paid. i think from the nature of the case it must be assumed that an attachment order under rule 54 comes to an end when the darkhast on which it was made is disposed of, unless the court otherwise: directs. it is suggested that on.....
Judgment:

John Beaumont, Kt., C.J.

1. This is a second appeal from an order of the District Judge of East Khandesh, raising a short point in execution, which I should have thought must have arisen frequently, but on which there does not seem to be any direct authority. The question is this. A money decree was obtained by the present appellant in 1924, and in 1932 he filed a darkhast against the judgment-debtor, and on that darkhast the judgment-debtor's interest in S. No. 108 was attached on March 21, 1933. Subsequently the judgment-debtor died, and the darkhast was disposed of. Then there was a further darkhast in the year 1934 which was disposed of, and the present darkhast was issued on October 6, 1937, against the legal representative of the judgment-debtor, and the only question which is raised is whether the attachment under the orders of March 21, 1933, still continues, or whether it came to an end when the darkhast of 1932 was disposed of. The lower Courts have held that the attachment came to an end when the darkhast was disposed of, and I think that view is right.

2. Attachment arises under Section 51 of the Civil Procedure Code, 1908, which provides that the Court may, on the application of the decree-holder, order execution of the decree by means of attachment and sale of any property. Order 'XXI specifies the methods of attachment to be adopted in the case of different classes of property, and Rule 54 provides that where the property is immoveable, the attachment shall be made by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all persons from taking any benefit from such transfer or charge. I think that an order of attachment of immoveable property, properly drawn, ought to limit the order of prohibition so as to extend only until the disposal of the darkhast or further order. I have not seen the order which was passed in this case, but attachment orders are not usually limited in this sense, and I am prepared to assume that the order prohibiting the judgment-debtor from transferring or charging the property did not expressly limit the duration of the order. But even on that assumption I am prepared to hold, from the circumstances in which it was made, that such an order, on its true construction, must be limited to a period until the darkhast is disposed of or some order is made for the continuation of the attachment. It can hardly be that such attachment is to exist for the life of the judgment-debtor unless expressly raised. In some cases the judgment debt may be discharged out of part of the property attached, and in such a case, if the attachment on the rest of the property is not raised by an order of the Court, it can hardly be suggested that it is to continue after the debt has been paid. I think from the nature of the case it must be assumed that an attachment order under Rule 54 comes to an end when the darkhast on which it was made is disposed of, unless the Court otherwise: directs. It is suggested that on that construction of Rule 54, it will conflict with Rule 57, which provides 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, it shall either dismiss the application or for sufficient reason adjourn the proceedings to a future date. That rule is not in any way inconsistent with the view that an attachment under Rule 54 prima facie lasts only until the darkhast is disposed of. If the darkhast is disposed of on account of the ?default of the decree-holder, and the Court under Rule 57 dismisses the application, then upon the dismissal of such application the attachment must cease. But when the Court dismisses an application, not for default of the decree-holder, as in this case, the attachment is not bound to cease; the Court may direct the attachment to continue. But if it does not order the attachment to continue, then I would hold that, unless the attachment order itself otherwise provides, the attachment, from the nature of the case; comes to an end with the disposal of the darkhast.

3. I think, therefore, that the decisions of the lower Courts were right, and the appeal must be dismissed with costs.


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