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Sarnapudi Appanna Vs. Rapanti Narsinga Rao and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAndhra Pradesh High Court
Decided On
Case NumberA.A.A.O. No. 19 of 1973
Judge
Reported inAIR1975AP304
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 47 and 96 - Order 21, Rule 57
AppellantSarnapudi Appanna
RespondentRapanti Narsinga Rao and ors.
Appellant AdvocateK.B. Ratna Sastry, Adv.
Respondent AdvocateM.S.R. Subrahmanyam, Adv.
DispositionAppeal allowed
Excerpt:
.....2 (2), 96 and 47 of code of civil procedure,1908 - restoration of execution petition which was dismissed for default -whether attachment of earlier execution petition revived and order of fresh attachment appealable - attachment here does not ipso facto get revived - separate application should be made - order of fresh attachment is a 'decree' under section 2 (2) and thus appealable. - - should, in their view, be construed liberally and if so construed, i fail to see why objections by parties to attachment or non-attachment of the properties before a sale takes place should not be held to be covered by the words 'relating to the execution' within the meaning of section 47 (1), civil procedure code. i am of the view that both the contentions are well-founded and supported by..........for money. the present respondents are his legal representatives.2. the plaintiff (decree-holder) filed e. p. no. 44 of 1953 for sale and attachment of immovable properties of the judgment-debtor. attachment and sale were ordered. on 24-3-1954 e. p. no. 44 of 1953 was dismissed, as the sale had to be stopped for want of bidders. in dismissing the application the executing court directed the attachment to continue for a period of six months. on 23-6-1954, the decree-holder filed again e. p. no. 162 of 1954, this e. p. also met with a similar fate. the sale had to be stopped for want of bidders and the e. p. was dismissed. attachment was ordered to continue for six months. the decree in the meanwhile came to be transferred to the present appellant. he filed e. p. no. 379 of.....
Judgment:

A.V. Krishna Rao, J.

1. This Civil Miscellaneous Second Appeal arises out of execution proceedings in respect of a decree obtained more than 21 years ago. On 8-12-52 one Appala Naidu obtained a decree against one Raparthi Lakshmina-singarao for money. The present respondents are his legal representatives.

2. The plaintiff (decree-holder) filed E. P. No. 44 of 1953 for sale and attachment of immovable properties of the judgment-debtor. Attachment and sale were ordered. On 24-3-1954 E. P. No. 44 of 1953 was dismissed, as the sale had to be stopped for want of bidders. In dismissing the application the executing court directed the attachment to continue for a period of six months. On 23-6-1954, the decree-holder filed again E. P. No. 162 of 1954, This E. P. also met with a similar fate. The sale had to be stopped for want of bidders and the E. P. was dismissed. Attachment was ordered to continue for six months. The decree in the meanwhile came to be transferred to the present appellant. He filed E. P. No. 379 of 1956. The property was again attachedat the instance of the transferee decree-holder. On 3-12-1956 the transfer of the decree in favour of the appellant was recognised. On 17-1-1957 attachment of the properties was ordered. On 9-8-1957 E. P. 379 of 1956 was dismissed with a direction that the attachment should subsist. The dismissal was made by reason of the fact of the pendency of the insolvency proceedings against the judgment-debtor. Unnumbered E. P. -- of 1964 and E. A. No. 424 of 1964 were filed by the transferee decree-holder to exclude the time taken by the insolvenry proceedings and continue execution proceedings On 6-7-1965 E. A. No. 424 of 1964 was allowed by the Sub-Court Visakapatnam. The unnumbered E. P. also was numbered as E. P. No. 207 of 1965. As by that time, the judgment-debtor died in the execution petition, there was a prayer to add the legal representatives of the deceased judgment-debtor and also order attachment and sale of the properties. On 7-10-1966 the Sub-Court. Visakhapatnam, ordered the properties to be attached bv 28-11-1966. The attachment was effected and further steps were ordered thereon. On 24-10-1968 the E. P. was dismissed for the default of the transferee decree-holder. The decree-holder thereupon filed E. A. No. 642/1968 for restoration of the E. P. dismissed for default. On 7-12-1968 E. P. 20V of 1965 was restored. Subsequently there was a change of jurisdis-tion in respect of the properties attached. The High Court in C. R. P. No. 1410 of 1989 had directed that the execution proceedings from the Visakhapatnam be transferred to the Vizianagaram Court. In 'Vizianagaram, the transferred E. P. was numbered as E. P. No. 22 of 1971. Even when the terms of the sale of the properties were about to be settled, the judgment-debtors filed a memo objecting to the sale on the ground that the earlier E. P. No. 207 of 1965 was dismissed for default of the decree-holder in the Visakhapatnam Court and after it was restored, there was no attachment again made and that therefore the sale proceedings could not be ordered. The contention was when E. P. No. 207 of 1965 was dismissed for the default of the decree-holder the attachment had also ceased and that the restoration of the execution petition did not have the effect of restoring the attachment also. The contention of the judgment-debtors had found favour with the Subordinate Judge, Vizianagaram. He was of the view that when the Execution Petition which was dismissed for default was restored, it could not be presumed that the attachment also revived particularly when the Execution Petition was dismissed for default of the decree-holder and the attachment had ceased. He, therefore, ordered a fresh attachment.

3. The aggrieved transferee decree-holder had preferred an appeal to the Court of the District Judge, Visakhapatnam. It was noticed by the learned Judge, that even by the date the attachment was ordered at the instance of the transferee decree-holder in E. P. No. 207 of 1965 the attachment effected in the prior E. P. No. 379 of 1956 did not cease and that in effect the property was re-attached in E. P. No. 207 of 1965. He posed the question, whether by reason of the dismissal of E. P. 207 of 1965 for default of the decree-holder and its subsequent restoration to file, the continuance of the earlier subsisting attachment effect on the prior E. P. No. 379 of 1956 was in any manner effected. On this point, the learned Judge had correctly held that the order in E. P. No. 207 of 1965 to attach the properties which were already attached in the earlier E. P. was redundant. He also expressed the opinion that the parties and the lower court had lost note of the fact that the attachment made in E. P. No. 379 of 1956 did not cease. But the learned Judge expressed the view that the appeal to the District Court was not maintainable, upholding a preliminary objection raised on behalf of the judgment-debtors. He considered the combined effect of Section 2(2) of the Code of Civil Procedure which defined a decree and Section 47, C.P.C. and thought that the order of the Court below did not amount to a decree and therefore no appeal lay. He was of the view that the appeal before him was only against the order of the lower court directing the attachment of the properties in execution proceedings. Though on merits, he expressed the view in favour of the decree-holder, he had dismissed the appeal as not maintainable.

4. The First Point that arises, therefore, for consideration is whether the appeal to the lower appellate court was maintainable.

5. The view of the lower appellate court that the appeal to it was against an order directing attachment and that therefore it could not be said to conclusively determine the rights of the par-ties and that the matter did not really fall under Section 47, C.P.C. does not; appear to me to be correct. No doubt the executing court had directed a fresh attachment of the properties, but in making that order had expressed the view that by reason of the dismissal of E. P. No. 207 of 1965 for default of the decree-holder, there was no revival of the attachment and therefore a fresh attachment had to be ordered. The real bone of contention between the parties was whether by reason of the restoration of E. P-207/65 the attachment effected in theE. P. stood revived. Section 47(1) of the Code of Civil Procedure requires that 'all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not 'by a separate suit.' Section 47, C.P.C. gives effect to the rule of law that in cases where there is an executable judgment as between the parties thereto or their representatives the only remedy is execution and no other action by way of suit would He. The section is intended to provide a cheap and expeditious procedure for determination of questions which relate to execution, discharge or satisfaction of a decree. If the questions that arise relate to execution, discharge or satisfaction of the decree, then it does not matter whether such question arises before or after the decree had been executed. In dealing with Section 244 of the old Code of Civil Procedure (now Section 47, C.P.C.) their Lordships of the Privy Council in Prosunno Coomar Sanyal v. Kalidas Sanyal, (1892) ILR 19 Cal 683 (PC) had expressed their satisfaction that Courts in India have not placed any narrow construction on the language of Section 244 of the old Code. In the latest case reported in H. Badridas v. D. B. Prasad, : [1974]1SCR210 their Lordships observed that Section 47, C.P.C. should, in their view, be construed liberally and if so construed, I fail to see why objections by parties to attachment or non-attachment of the properties before a sale takes place should not be held to be covered by the words 'relating to the execution' within the meaning of Section 47 (1), Civil Procedure Code. If that is so, there is no difficulty in holding that the question involved in this case is covered by the definition of decree contained in Section 2(2) of the Code of Civil Procedure, which expressly provides that the decree shall be deemed to include the determination of any question within Section 47, C.P.C. I, therefore, hold disagreeing with the lower appellate Court that the appeal to the. Court below was competent and a second appeal to this court lies.

6. It was contended by Sri Ratna Sastry for the appellant that on the facts of this case, the dismissal of E. P. 207 of 1965 for default of the decree-holder had not the effect of terminating the attachment already made and which by reason of the order in E. P. No. 379 of 1956 was directed to subsist. The attachment that was sought by the decree-holder in E. P. 207 of 1965, the learned counsel contended, was indeed superfluous and redundant In other words, he contended that the dismissal of E. P. 207 of 1965 on ac-count of the default of the decree-holder did not have the effect of terminating the prior attachment made in the earlier E. P. He contended that an attachment will ceaso only if the E. P. in which the attachment was effected was dismissed for default and not when a subsequent petition was dismissed for default. Even otherwise, the learned counsel contended that when E. P. 207 of 1965 was restored pursuant to E. A. 642/68 the effect was to restore the E. P. to a position in which it was on the date of its dismissal viz., the attachment effected in the E. P. also stood revived and restored. I am of the view that both the contentions are well-founded and supported by authority.

7. In Karuppan Chettiar v. Raj-angam (AIR 1940 Mad 172), it was held that an attachment will cease only if the application for execution on which the attachment was effected was dismissed for default and not when a subsequent application was dismissed for default. This decision was followed by Satyanarayana Rao, J. in Sub-rahmanian v. Official Receiver (AIR 1949 Mad 594). The facts in that case are somewhat similar. In that case, certain property was attached in execution of a Rangoon High Court decree in E. P. 73 of 1937. As insolvency proceedings against the judgment-debtor had intervened, E. P. 73 of 1937 was not pursued and the petition was closed. After the adjudication of the judgment-debtor was set aside the decree-holder had filed E. A. No. 46 of 1941 to continue the execution in E. P. 73 of 1937. The executing court had directed the decree-holder to file a draft sale proclamation and after it was filed the properties, were directed to be attached. The learned Judge observed that it was difficult to see why the order of attachment was made notwithstanding that the properties were already under attachment in E. P. No. 73 of 1937. However, the application of 1941 came to be dismissed on 10-3-1941, as batta was not paid for attachment of the property. The learned Judge opined that the direction by the Court that batta should be paid for attachment was an unnecessary direction and the non-compliance with such a direction would not entail the penal consequence contemplated by Order 21, Rule 57, C.P.C. Following the judgment in Karuppan Chettiar v. Rajangam (AIR1940 Mad 172) (supra), the learned Judge held that the dismissal of E. P. No. 46 of1941 did not terminate the attachment effected in E. P. 73 of 1937.

8. In the light of the above authorities, it has to be held in this case that the attachment effected earlier had not ceased. The fact that in E. P. No. 207 of 1965 the decree-holder sought the attachment of the properties does not makeany difference. It was superfluous and wholly unnecessary. The fact that E. P. No. 207 of 1965 was dismissed for default of the decree-holder may be held to have put an end to the redundant attachment made at the instance of the decree-holder, but it would not operate against the attachment earlier made in E. P. 379 of 1956.

9. The matter also can be looked at from another angle. What is the effect of setting aside the order of dismissal of E. P. 207 of 1965 for the default of the decree-holder and restoring the E. P.? Does it have the effect of reviving or restoring the order attaching the property in that E. P.? That the attachment also stands restored when the execution petition which was dismissed for default is restored, is supported by the authority of a Division Bench of the Madras High Court reported in Annapuma v. Lakshmana : AIR1950Mad740 . It was observed by the Bench Cat page 742) as follows:

'In the case we are here considering, the attachment of the property was not an ancillary or interlocutory order, but part of the process of execution. If, in the case of a dismissal for default even ancillary and interlocutory orders have to be restored if the dismissal for default is set aside on appeal, then a fortiori in a case such as we are here considering, the order attaching the property would have to be restored. When an order for dismissal for default is set aside, the effect of the appellate order which declares the order of the trial court to be wrong is to restore the original application; and the trial court would have to proceed with it from the stage at which it had interrupted in by dismissing it for default. If, therefore, in the present case the original order is set aside, the execution proceedings would have to be continued from the stage at which they were when the petition was dismissed for default. At that stage the property had already been attached.'

10. A reference may profitably be made to the Full Bench case reported in Veeraswami v. Ramanna (AIR 1935 Mad 365) (FB).

11. That was a case where a suit was dismissed for default and it was set aside on an application made. In that case, an order of attachment before judgment was sought and granted in the suit; but it was raised on security being furnished by the defendant. The Full Bench held that when the order dismissing the suit for default was set aside, the suit remained as it was on the day when it was dismissed and that all proceedings taken upto that date must be deemed tobe in force when the order of dismissal was set aside. All interlocutory orders will be revived on the setting aside of that order of dismissal and similarly - an order for attachment of the property would also be revived. Since on a restoration of the suit, all ancillary orders also stand restored without any further orders, the security bond given for the raising of the attachment before judgment was held to have stood restored. It was, therefore, held that the decree-holder was entitled to enforce the security bond.

12. In any view of the matter, the direction for a fresh attachment given by the executing court in this case cannot stand. Sri M. S. R. Subrabmanyam sought to contend that having regard to the provisions of Order 21, Rule 57, CP.C. the ceasing of an attachment owing to the default of the decree-holder is a consequence of the dismissal for default. He also urged that when an E. P. is dismissed for default, the Court is bound to order ceasing of the attachment. Even if no such order is made, still the effect in law is that the order of attachment ceases and that it was incompetent for the court in cases where the E. P. is dismissed for the default of the decree-holder to give a direction to continue the attachment. He referred me to a Division Bench ruling of this Court in L. R. Goud v. Raju Bai, : AIR1971AP336 . He contended that there should have been another application to restore the attachment also and as that was not done, the consequential ceasing of attachment did not ipso facto stand revived. The authority relied on lays down no proposition which supports the contention urged.

13. This argument does not have the merit of either law or logic in it. The discussion with reference to the authorities made by me above effectively forecloses any argument of the type advanced by the learned counsel for the respondents.

14. There is no need for any further attachment of the properties. The execution proceedings in the court below can go on according to law. The C. M. S. A. is accordingly allowed setting aside the judgments and decrees of the courts below. The appellant will get his costs here and in the lower appellate court.


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