1. This appeal under Clause 10 of the Letters Patent of this High Court involves mainly the question whether an attachment before judgment survives even after an execution petition is filed subsequent to the passing a decree in plaintiff's favour and is later dismissed due to the default of the decree-holder.
Facts which are material for the consideration of this appeal are as follows :
Respondent No. 1's father Daudbhai filed a Civil Suit No. 86 of 1949 for recovery of money, against respondent No. 2 Barkatali. In the course of this suit he obtained an order for attachment before judgment against Barkatali and in pursuance of the same, attached one house as belonging to Barkataii on 164-1949. To this attachment the present appellant Hakimuddin objected, contending that the house belonged to him and Barkatali had no saleable interest in it. While the objection proceedings were pending, a decree was passed in favour of Daudbhai on 13-5-1950. Subsequent to this the objection case terminated, partly in favour of the objector and partly in favour of Daudbhai, on 16-8-1950. It was held that Barkatali had saleable interest in only half portion of the house. The remaining half portion accordingly was released from attachment. Daudbhai then died.
His son Gulamali applied on 6-3-1953 for the execution of the decree in Execution Case No. 12 of 1953. Thepetition was dismissed on 12-5-1954 on the ground that Gulamali had not obtained succession certificate. A second application No. 20 of 1956 for execution was fited or 24-4-1956. In this application the decree-holder applied for re-attachment of the attachable half portion of the house and for its sale, with a view to realise the amount of the decree. Attachment was effected on 15-9-1956 and while further proceedings in execution for its auction-sale were in progress, the present suit was filed on 15-12-1956 for a declaration that even this portion which was held to be attachable as belonging to the judgment-debtor was not liable to attachment and sale.
2. The suit was resisted by the defendant Gulamali inter alia on the grounds that the portion now proceeded against belonged to Barkatali and not the plaintiff-appellant and further that since after the decision in Civil Misc. Case No. 10 of 1949 on 16-8-1950 no declaratory suit had been filed within one year as required by Order 21, Rule 63, G. P. C., that order had become final between the parties. The present suit being filed more than six years subsequent to that date i.e. on 15-12-1956 is barred by limitation.
3. Issues bearing on the question regarding the title of the plaintiff-appellant over the disputed half portion of the house, regarding limitation due to the effect of failure on the part of plaintiff Hakimuddin to file a declaratory suit within one year subsequent to the decision dated 16-8-1950 upholding attachability of the disputed portion and res judicata were framed. The issues Nos. 7 and 8 which related to limitation and res judicata were tried as preliminary issues. The Trial Court held that the suit was barred by limitation under Article 11 of the Limitation Act as it was not filed within one year from the date when the plaintiff's objection was rejected as regards the present half portion of the house. It further held in the alternative that even if Article 120 of the Limitation Act is applied, as the present suit was filed more than six years from the date of the rejection of the plaintiff's claim with respect to the present half portion, the same was barred under that provision. In view of this finding which was sufficient to dispose of the suit no finding on the issue of res judicata was considered necessary.
4. There was an appeal against this decision. This was dismissed. Second appeal too was disallowed. However the learned Judge granted leave for further appeal under Letters Patent.
5. Principal contention raised in this appeal is that after the decision of the objection case on 16-8-1950 a petition for execution No. 12 of 1953 was filed and dismissed due to the default committed by the decree-holder in not obtaining succession certificate; the attachment effected before judgment had come to an end and a fresh attachment had been effected on 15-9-1956. The present suit filed on 15-12-1956 for declaration regarding this attachment is not barred under Article 120 of the Limitation Act.
6. The learned Single Judge who heard the case in second appeal considered it unnecessary to discuss the question whether the attachment effected before judgment had continued after the dismissal of the first execution petition on 12-5-1954 or had come to end, since according to him only cause of action which the plaintiff could claim in respect of the disputed half portion of the house had arisen on 16-3-1950 when the objection case was decided against him, and the suit filed for challenging that unfavourable decision on 15-12-1956 was beyond limitation both under Article 11 and Article 120 of the Limitation Act. He reasons thus:
'If be had filed an objection under Order 21, Rule 58 and if that objection was dismissed then the limitation would certainty start from the day the objection was dismissed and the suit would fall under Order 21, Rule 63, C. P. Code. Before the filing of the suit the only objection he has filed was objection to the attachment before judgment and that objection was decided on 15-8-1950. He was aggrieved by it. Therefore if there was any cause of action depending on the dismissal of his objection accrued to him, it was not on any other date but 16-8-1950. If limitation starts from 16-8-1950 it cannot remain in abeyance.'
7. The aforesaid view proceeds upon misconception as to what could appropriately be a cause of action for suit to obtain declaration. The plaintiff no doubt was aggrieved by the order dated 16-8-1950 and he sought a declaration regarding invalidity of that order. But he also alleged attachment in the course of execution case No. 20 of 1956 of the disputed half portion of the house on 15-9-1956 and in case this attachment gave him a fresh right on the ground that prior attachment had come to an end while his right of suit to have that attachment declared invalid was still subsisting by reason of the provisions of Order 21, Rule 57, then it was not possible to avoid consideration of the question whether the attachment before judgment had continued even after the dismissal of execution case No. 12 of 1953 on the ground that the legal representatives of the original decree-holder had not attained succession certificate. The plaintiff was no doubt aggrieved by the first attachment but he was as well aggrieved by the second attachment and when he came to Court subsequent to second attachment seeking declaration of his right his suit was really one under Section 42 of the Specific Relief Act rather than one under Order 21, Rule 63, C. P. C., which could only have been so had he again submitted an objection under Order 21, Rule 58 and lost.
8. It is, therefore, necessary to consider whether the attachment before judgment had subsisted, in spite of the dismissal of the execution petition No. 12 of 1953, the said attachment not being in the course of execution. For, if it subsisted then the second attachment would be superfluous and since the suit is filed on 15-12-1956 it would be more than six years from the date of rejection of his objection to the extent of the disputed half portion at the house. On this question whether the attachment effected before judgment survives the dismissal of an execution petition for the default of the decree-holder or does not, there is a sharp conflict and on that account we propose to consider the question, keeping in view the reasons set out in these decisions, both for and against.
Before examining the authorities bearing on this point It will be useful to refer to the material provisions in the Code. Order 21, Rule 57, C. P. C. as it was according to law in force then provided :
'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 any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease.'
It will be clear from the terms of this rule that the conditions for the applicability of the rule are :
1. The property should have been attached in execution of a decree.
2. The Court must have been unable to proceed further with the application for execution.
3. This inability to proceed with it must have arisen due to decree-holder's default.
When these conditions are fulfilled the Court could follow one of the two courses, it could adjourn the proceedings to a future date or it could dismiss the execution petition. This rule was new and was subsequently added in the Code of 1908 because in the earlier Code there was no provision for dismissal of an execution petition in spite of defaults committed by the decree-holders.
This led to the piling up of execution petitions. The Courts then resorted to practice of striking off execution petitions in these circumstances but the practice was struck down as illegal. When a specific provision for dismissal of an execution petition was being made the question regarding attachment effected in the course of execution proceedings naturally arose as to whether such attachment should subsist in spite of dismissal of the execution petition or should cease. The rule provided for cessation of attachment when the dismissal was due to inability of the Court to proceed further with the application for execution due to decree-holder's default. The rule as amended by some of the High Courts in pursuance of their rule-making power provided for the power to keep attachment subsisting by a specific order to that effect, in spite of such dismissal.
9. It is thus plain from the circumstances in which the rule came to be made and the terms of it, that the rule was meant to provide for the case where a property has been attached in execution of a decree. It is not possible to conceive of an attachment in execution of a decree in the absence of a decree itself or before any decree at all is passed. The rule in terms therefore would prima facie be inapplicable to the case where a property is not attached in execution of a decree but it is attached during the pendency of the suit or appeal before judgment in pursuance of the power of the Court under Order 38, Rule 5, C. P. C. That rule empowers the Court to call upon the defendant to furnish security, in such sum as may be specified for the production of property sufficient to satisfy the decree or appear and show cause why tie should not furnish such security when it is satisfied that the said defendant is about to dispose of whole or any part of his property or is about to remove the whole or any part of his property from the local limits of jurisdiction of the Court, with intent to obstruct or delay the execution of any decree that may be passed against him.
The object of the provision clearly is to prevent any attempt on the part of the defendant to thwart or impede the execution of a likely decree against him. When in pursuance of this provision a defendant furnishes security, such security inures to the benefit of the decree-holder not only up to the date of the decree but even later on and the decree-holder, as long as his right to execute the decree does not get barred by limitation or by any other pro-vision of law in connection with the liability of the surety, can proceed against the surety and this he can do In spite of the fact that his earlier execution petition is dismissed due to his default. The surety in such a case is not discharged. Where the defendant does not furnish security and his property is attached the said attachment does not cease as soon as the decree is passed, although it has to be withdrawn when the suit against him is dismissed. On the other hand Rule 11 of Order 38 provides :
'Where property is under attachment by virtue of the provisions of this Order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property.'
10. Thus the rule emphasises the fact, that the attachment does not come to an end the moment the decree is passed but continues. There is no provision in Order 38 that such attachment is deemed to be an attachment in execution when the decree-holder first applies for execution with a view to realise his dues by the sate of the property and that further continuance or cessation of such attachment is governed by the rules relating to execution of a decree, treating such attachment as one made in the course of that application Itself. Some of decisions notably Meyyappa Chettiar v. Chidambaram Chettiar, AIR 1924 Mad 494 (FB), and other cases which virtually adopt the opinion expressed there take the view that even though there is no such specific deeming provision it is imported due to material provisions of the Code relating to attachment and execution of decrees. On the other hand there are some decisions which do not share this view. It will be our endeavour to examine the reasoning underlying these two sets of decisions.
11. In AIR 1924 Mad 494 (FBI, the question was placed before the Full Bench consisting five Judges. Before that in Venkatasubbiah v. Venkata Seshaiya, ILR 42 Mad 1 : (AIR 1919 Mad 752), it was held that Order 21, Rule 57 does not apply to attachment before judgment. This decision was followed by the Full Bench decision in Arunachalam Chetti v. Periasami Servai, ILR 44 Mad 902 : (AIR 1921 Mad 163) (FB), where it was held that when an application for execution is filed on the basis of attachment before judgment, the attachment before judgment must be deemed to be an attachment in execution of a decree. In view of this later Full Bench decision doubt was expressed about the tenability of the view in Venkatasubbiah's case, ILR 42 Mad 1: (AIR 1919 Mad 752) and consequently Ramesam, J., referred the question, to a Division Bench. The Division Bench consisting of Spencer and Devadoss, JJ,, who heard the reference thought that a reference to a larger Bench was proper. Spencer, J., was a party to the decision of the Full Bench in Arunachalam Chetti's case, (LR 44 Mad 902 : (AIR 1921 Mad 163) (FB) and he was of the view that consistent with the view expressed by himself in that case attachment before judgment becomes one in execution of a decree when an application for execution is made while Devadoss, J., thought that Venkatasubbiah's case, ILR 42 Mad 1 : (AIR 1919 Mad 752) was rightly decided. When the matter came before five Judges similar conflict was discernible. Schwabe, C. J. and Wallace, J., took the view in line with that in Venkatasubbiah's case, ILR 42 Mad 1 : (AIR 1919 Mad 752) white the remaining three namely Coutts-Trotter, Ramesam and Walter, JJ., took a contrary view. It is thus clear that a sharp conflict was discernible amongst the Judges of the Madras High Court on this question.
12. The grounds on which the majority view proceeded were somewhat differently expressed by the judges holding the majority view.
13. One of them Coutts-Trotter, J., was prepared to agree with Schwabe, C. J., holding the minority view that a decree-holder need not proceed in execution even after obtaining a decree in his favour and that it would be absurd to call an attachment made before judgment as an attachment made in execution when there is no execution petition at all. Therefore according to him attachment before judgment does not become one in execution, unless the decree-holder applies for execution basing necessarily his petition on that attachment, and demands for sale of property that attachment automatically becomes an attachment in execution. According to the learned Judge it was not necessary to apply the principle of verbatim et libeatim to the provisions of Order 21, Rule 57 on the ground that it is a penal provision and that the words 'where any property has been attached in execution of a decree' can properly bear the construction 'where any property has been in a state of attachment in execution of a decree'. He was not prepared to agree with Schwabe, C. J., that the attachment in execution and attachment before judgment are essentially different in form and substance.
14. Thus his view seems to be that attachment before judgment becomes automatically one in execution the moment the decree-holder seeks to execute the decree by the sale of the property and the underlying reasoning is that there could not be a sale in execution unless there is attachment in execution and that the words in Order 21, Rule 57 could bear their straining so as to construe them as including attachment before judgment.
15. Ramesam, J., adds to this reasoning, regarding automatic change from attachment before judgment into one in execution, the ground based on Order 21, Rule 11 (2) (j). He reasons that there could be two ways with reference to attachment in which the Court's assistance can be sought for executing the decree. One of attachment and sale and the ether of sale without attachment in execution. The latter, according to him, can only be availed of in a decree for sale and no other. There is according to the learned Judge, no essential difference in the two kinds of attachment. Order 38, Rules 7 and 3 provide that the mode of attachment and investigation of claims preferred to property in the case of attachment before judgment is to be similar to what takes place in execution.
16. Thus in this Full Bench case it is emphasised by the majority of judges that the attachment before Judgment has to be taken to be one in execution, the moment the decree-holder having obtained decree seeks to execute it by the sale of the property, They certainly felt themselves bound by the decision of the Full Bench of that High Court in Arunachalam Chetti'S case, ILR 44 Mad 902 : (AIR 1921 Mad 163) (FB). The underlying reasoning which runs through the majority view is that for securing sale attachment in execution is a necessary pre-requisite in all cases and since where there is attachment before judgment reattachment need not be applied for in execution, it follows that attachment already made ought to become one in execution:
17. I think that there is no warrant for the assumption that in every case attachment in execution is a necessary pre-requisite for sale in execution, except in the case of decree for sale and' neither Order 21 Rule 11 (2) (j) nor Section 63, C. P. C. or Article 11 of the Limitation Act can be resorted for making such an assumption. About six months subsequent to the decision in Mayyappa Chettiar's case, AIR 1924 Mad 494 (FB), Allahabad High Court considered this question. Sulaiman and Kanhaiya Lal, JJ., in B. Akhey Ram v. Basant Lal, AIR 1924 All 860, held that Order 21, Rule 57 in terms applies to attachment in execution and in the absence of any specific provision making that rule applicable to attachment before judgment it cannot be applied. Contention based on Order 38, Rule 7 for applying that rule was rejected on the ground that Rule 7 refers to mode of attachment and not the manner in which attachment ceases. For cessation of attachment rule applicable is Rule 9. They followed decisions including that in Venkatasubbiah's case, ILR 42 Mad 1 : (AIR 1919 Mad 752), and dissented from the reasoning in Ganpatl v. Mahadeo, AIR 1921 Mag 57. It. seems the Full Bench Madras decision reported in AIR 1924 Mad 494, was not brought to their notice. Latter Full Bench decision of the same High Court reported in Abdul Hamid v. Asghari Begum AIR 1953 All 173, affirmed the earlier decision of Sulaiman. and Kanhaiya Lal, JJ., AIR 1924 Ail 860.,
18. The main reasoning employed in AIR 1921 Nag. 57 was that since Rules 55 and 56 of Or. 21 apply to attachment before judgment, there is no reason why Rule 57, ought not to apply.
19. Rule 55 provides for removal of attachment after satisfaction of the decree and Rule 56 provides for payment of attached coin and currency notes. Both the rules in terms are not confined to attachment made in execution and the reason underlying them also does not make it necessary so to confine them. Moreover Section 64, which is the main section indicating the underlying purpose and scope of attachment, applies equally to attachment before judgment is well as that made in execution and under, that section any private alienation of property subsequent to attachment whether made before judgment or in execution is void only against a claim enforceable under the attachment. Where, therefore, the amount of the decree' is paid off and the decree, is satisfied it becomes tantamount to withdrawal of attachment. Thus merely because Rules 55 and 56 can be properly applied in the case of attachment before judgment it does not necessarily follow that every other Rule in Order 21 ought to be so applied.
20. One more decision needs to be considered. That is the decision of Rankin, C. J., and Mukerji, J., in Shibnath v. Saberuddin Ahmed, AIR 1929 Cal 465, Rankin C.J., who-delivered the leading judgment in that case, agreed with the minority view in Meyyappa Chettiar's case, AIR 1924 Mad 494. He observed :
'It is evident from the language of the rule itself, and it is still more evident from the circumstances under which it was passed, that it was intended to provide a remedy for the grievance or inconvenience which is apt to arise, where, after an attachment in execution, the application for execution cannot further be proceeded with by reason of the decree-holder's default.'
and that --
'It is no part of the intention of this rule to say that an attachment before judgment, which existed before any application could be made in execution, and which prima facie would continue to have effect if no application for execution had been made, should fall to the ground merely because a subsequent application for execution has come to nothing.'
21. He agreed with Coutts-Trotter, J., that this is not a question of giving strict construction to a penal pro-vision, but, according to him, the phrase 'attached in execution of a decree' can only be extended beyond its proper meaning by reason of an implication required by the object of the rule or else by showing very clearly, that it is required by some other rule of a germane character. He was not prepared to hold that unless Rue 57 is held applicable to attachment before judgment under the circumstances present in the Madras decision (AIR 1924 Mad. 494), true intention of any other rule is interfered with. After quoting terms of Order 38 Rule 11 the learned Judge' says :
'From this it is contended that upon an application for execution being made, the attachment before judgment becomes an attachment in execution and nothing mere, so as to be subject to all the infirmities of an attachment in-execution. Doctrines of merger and other theories are ingrafted upon the simple language of the Code that it shall not be necessary to re-attach. By reason of this provision no execution based upon an attachment before judgment can be distinguished in validity or character from an execution based upon an attachment in execution unless indeed some particular enactment cart be seen to be addressed to this distinction. There is,, however, nothing in Rule 11 Order 38 to give colour to the view that for the purposes of Rule 57, Order 21 'attached in execution' is a phrase which covers attachment before Judgment.'
22. Reiying upon the' Privy Council decision in Ram- Krishna Das v. Surfunnissa Begum, 7 Ind App 157 (PC) the learned Judge held that reattachment in execution does not involve abandonment of right under attachment before judgments since, according to him, if a man does something which is not necessary he cannot, as a proposition of law, be taken to have abandoned any right.
23. It is thus plain from the view expressed in these decisions that the language of Rule 57 does not justify its application to attachment before judgment. The circumstances in which the rule came to be made and the object behind it did not justify the intention for its application to the case of attachment before judgment. There is no warrant for the proposition that before there could be sale in execution there must be attachment in execution even though it may be accepted that an attachment is a pre-requisite for sale in execution of a money decree. Moreover since security furnished in the proceeding for attachment before judgment becomes available to the plaintiff in case he obtains decree not only when he first applies for execution but even later after an earlier application is dismissed for his default, until the decree is satisfied or until surety is discharged by any other provision of law; there is no reason why different result should follow where instead of furnishing surety property is permitted to be attacded. The object behind attachment before judgment being to protect the prospective decretal claim of the plaintiff on proof of defendant's conduct to thwart or delay execution, the protection once given should continue until the decree, if passed is satisfied in some way.
24. For these reasons we would prefer to follow the view expressed in AIR 1924 AN 860, AIR 1929 Cal 465, AIR 1953 All 173 (FB) and the minority view in AIR 1924 Mad 494 (FB), It is unnecessary to refer to other decisions as they share the one or the other of the opposing views indicated above.
25. Applying this view in the present case it is clear that the attachment which had been effected before judgment had continued in spite of the dismissal of The first execution application No. 12 of 1953 for the decree-holder's default in not obtaining succession certificate which prevented the Executing Court from proceeding further In execution, no fresh right could arise after any unnecessary attachment in execution Case No. 20 of 1956. The limitation for a suit for declaration consequently began to run when the objection petition filed during the proceedings for attachment before judgment was dismissed on 16-8-1950 so far as half portion of the house was concerned. The present suit was filed on 15-12-56, that is after more than six years. It is therefore, unnecessary to consider whether proper Article applicable is Article 11 or Article 120 of The Limitation Act for in either case the claim would be barred.
26. The contention raised on behalf of the appellant for the suit being within, limitation is unsustainable.
27. The appeal is therefore without force. It is consequently dismissed with costs.