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Agha Syed Daud Ali Shah and ors. Vs. Pandit Ram Prasad and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1915All371; 30Ind.Cas.787
AppellantAgha Syed Daud Ali Shah and ors.
RespondentPandit Ram Prasad and ors.
Excerpt:
execution, application for, dismissed for default - attachment, if continues--civil procedure code (act xiv of 1882), section 276--civil procedure code (act v of 1908), order xxi, rule 57. - .....is whether the property should be deemed to have been under attachment on the date on which the gift by hayat ali shah in favour of his mother was made. on behalf of the defendants it is contended that the striking off of the execution proceedings should raise a presumption that the attachment had been withdrawn. under the present code of civil procedure if an application for execution is dismissed for default, it must be deemed that the attachment was withdrawn, but there was no such provision in act xiv of 1882, which was the code of civil procedure applicable at the time when the execution case was struck off on the 18th of july 1907. it has been held by this court in a number of cases that unless there is a clear order withdrawing the attachment, the presumption will be that the.....
Judgment:

1. The plaintiffs' predecessor-in-title obtained a decree for mesne profits against Hayat Ali Shah and others on the 28th of August 1905. On the 11th of June 1906, he applied for execution of the decree and on the 23rd of July 1906, certain property of the judgment-debtors was attached. The execution case was struck off on the 18th of April 1907 by reason of the decree-holder's default in paying certain requisite fees. Meanwhile an appeal from the decree was pending in the High Court. After the disposal of the appeal the decree-holders applied for the revival of the execution proceedings on the 16th of July 1909 and they prayed for the sale of the property which had already been attached. On the 18th of August 1908, Hayat Ali Shah made a gift of the attracted property in favour of his mother who, on the 16th of February 1909, sold the said property to the principal respondents. Upon the objection of those respondents the Court released the attachment and thereupon the suit, out of which this appeal has arisen, was brought by the plaintiffs for a declaration that they were entitled to proceed against the attached property on the ground that the gift and the sale were void as against them as the property had been attached on the 23rd of July 1906 and the transfers were made pending the attachment. The question to be considered is whether the property should be deemed to have been under attachment on the date on which the gift by Hayat Ali Shah in favour of his mother was made. On behalf of the defendants it is contended that the striking off of the execution proceedings should raise a presumption that the attachment had been withdrawn. Under the present Code of Civil Procedure if an application for execution is dismissed for default, it must be deemed that the attachment was withdrawn, but there was no such provision in Act XIV of 1882, which was the Code of Civil Procedure applicable at the time when the execution case was struck off on the 18th of July 1907. It has been held by this Court in a number of cases that unless there is a clear order withdrawing the attachment, the presumption will be that the attachment continues. No doubt in some cases the opinion has been expresesd that the question is one of the intention of the Court and the parties. If we were to consider the case from that point of view, it is clear that the intention of the Court was to maintain the attachment, for we find that when an application was made to revive the execution proceedings, the Court held, on the 2nd of August 1909, that no further attachment was necessary and that the property was already under attachment. The delay which had taken place in following up the attachment is explained by the fact that an appeal was pending from the original decree in the High Court. We think the Court below was wrong in holding that the property was not under attachment when the gift in favour of the judgment-debtor's mother was made. That gift having been made during the pendency of an attachment was void against the attaching creditor and the sale made by the donee falls with it. It was urged on behalf of Hayat Ali Shah that he was not a party to the original suit and that it was through an error that his name appears in the array of judgment-debtors. It is admitted that the decree for mesne profits was passed against him. We allowed him an opportunity of getting the decree amended if his statement was true but we are informed that the application made by him has been rejected. We must hold that Hayat Ali Shah w as a person against whom the decree sought to be executed was passed. We allow the appeal, set aside the decree of the Court below and decree the plaintiffs' claim with costs in both Courts, including fees in this Court on the higher scale.


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