R.N. Misra, J.
1. The decree-holders in a money suit are the petitioners in this revision application. They obtained the decree in question for a total amount of Rupees 3235-3-3 pies on 8-3-57 against judgment-debtors Janmejoy Swain and Pata Dei.During the pendency of the suit there was an attachment before judgment against the properties which are involved in the present proceedings. Execution Case No. 50 of 1967 was filed by the decree-holders, as the decree had remained unsatisfied. As there is no objection that Execution Case No. 50 of 1967 was barred by limitation it must be taken as an accepted position that there had been other execution cases intervening as steps in aid.
Mr. Patra for the opposite parties wanted to raise objection on that score mainly on the ground that the decree-holders have not placed materials to prove other steps in aid. For the purposes of the present revision application, I have ruled out such contention on the ground that objection on such score was not taken in the Court below and, therefore, such objection must be taken as barred by constructive res judicata. This revision petition will, therefore, proceed on the basis that there was an attachment before judgment and that Execution Case No. 50 of 1967 was within limitation and maintainable.
2. In this execution case the opposite parties and another applied under Order 21, Rule 58, Civil P. C. for release of certain specific items of properties on the allegation that these properties had been purchased by them under different sale deeds (Exts. 1, 3, 4, 7 and 9) between the period 10-5-1962 and 23-5-1962. It is not disputed by the decree-holders that on these registered sale deeds one of the decree-holders on behalf of all gave consent for the sale.
The learned Subordinate Judge as the executing Court went into the matter and came to hold that as one of the decree-holders himself had written the endorsements and had signed them, it must be taken that they had waived their right under attachment and these properties which have now been sold to third parties cannot be proceeded against in the execution case and, therefore, while rejecting the claim of one person who is not a party to this revision application on the ground that consent of the decree-holders had not been proved in that case he directed release of the properties described in schedules Ka, Kha, Ga, Gha and Cha in the execution petition which are covered by the sale deeds Exts. 1, 3, 4, 7 and 9 respectively relating to the opposite parties in this Court.
3. Aggrieved by the said order of release the decree-holders are now the petitioners. Three questions have been raised by Mr. Mohapatra in the' revision application. They are:--
(1) The attachment having been madebefore judgment the relevant provision toapply is Order 38, Rule 11. Civil P. C. Asattachment subsisted, there could be nosale until the Court lifted the attachment.
(2) Waiver on the part of the decree-holders has not been established and on the materials on record the learned Subordinate Judge was not justified to hold that there was waiver. In any event the consideration money under these sale-deeds having not either been paid to the decree-holders or deposited in Court for satisfaction of the execution case the learned Subordinate Judge should not have released the property.
(3) Keeping in view the language of Order 21, Rule 59, Civil P. C. it must be held that these claimants were not entitled to maintain the claims in the executing Court.
Mr, Patra, for the opposite parties, raises a contention that in view of the language of Order 21, Rule 57, Civil P. C. and on the basis that there must have been intervening execution cases which should also be taken to have been dismissed under some contingency or other, applying Order 21, Rule 57(2), Civil P. C., it must be held that attachment, even if made before judgment, had lapsed by the time of the sales in 1962. The submission of Mr. Patra, therefore, would raise a fourth question for examination. Each of these questions requires careful examination as they have substantial bearing on the points in issue.
4. Let me first dispose of the question No. 2 as to whether in the facts and circumstances of the case the learned Subordinate Judge should have held that there was waiver. There has been admittedly no finding by the learned Subordinate Judge in the miscellaneous proceeding that the consideration money has been either paid to the decree-holders or deposited in Court In the normal course of events no decree-holder would allow release of property already under attachment particularly when it constitutes a substantial portion of the property available to be executed against without securing his own interest. Mr. Patra contended that there was evidence on record to justify a finding that the consideration money under the sale deeds had really been paid to the decree-holders and the learned Subordinate Judge failed to record a finding on such evidence. Though normally it is not a function of this Court sitting in revision to look into the evidence. I wanted to satisfy myself that there was some substance in the contention of Mr. Patra particularly with a view to find out whether if the other contentions of Mr. Mohapatra for the petitioners failed it would make out a case for remand. On a perusal of the evidence 1 am also satisfied that the evidence is absolutely undependable and on the basis of such evidence a finding is difficult to be recorded that the decree-holders had been paid the consideration money under the sale deeds.
5. The learned Subordinate Judge seems to have taken the view that the conduct of the decree-holders amounted to waiver. To support the contention of Mr. Mohapatra that waiver has not been established and the endorsements on the sale deeds cannot be taken to be waiver he sought to rely on AIR 1928 Bom 444 (Shivlal v. Taniram) where a Division Bench of that Court, on examination of a case almost on all fours on this aspect of the point held,
'Waiver must be properly proved; the ordinary principle is that waiver is an intentional act; and a clear act showing such an intention to waive must be shown.'
Ultimately they held that there was no waiver and attachment must be taken to have continued. Another aspect of the matter pertinent to this point is available in AIR 1927 Mad 648 (Subbayya v. Subba Reddy) where Odgers, J. held,
'There cannot be a partial raising of an attachment of property by consent of parties outside Court, Court must raise an attachment unless it becomes inoperative by payment of decree debt and there must be an application therefor and an order of Court,'
I think this is a sound rule which should be allowed so that confusion may not arise in judicial proceedings. In the absence of any material of this type in the present case it as difficult to hold that there was either consent leading to waiver or that there is material to hold that the decree-holders arc estopped from challenging the claim of the transferees-claimants. On the aforesaid analysis, I must dispose of this question against the claimants and hold that waiver has not been established.
6. Coming to the question as to whether under the provisions of Order 21, Rule 59, Civil P. C. the claimants can maintain their application, it is proper to quote the rule to start with. Order 21, Rule 59, Civil P. C., as applicable to the State of Orissa in view of the Patna amendment, is as follows:--
'The claimant or objector must adduce evidence to show that at the date of the decree or of the attachment, as the case may be, he had some interest in, or was possessed of, the property in question.'
As has been indicated above, the attachment was sometime prior to the decree and the decree itself is dated 8-3-1957. Admittedly, the sales in favour of the claimants are sometime in 1962. As such the claimants were neither in possession at the time of attachment nor had they anything to do with the property even at the time of the decree. In the circumstances, it is difficult to hold that at the instance of such persons a proceeding under Order 21, Rule 58, Civil P. C. could be sustained. Reference may, in this connection, be made to the decision in AIR 1934 Pat 511(Mukhram Pandey v. Ariun Missir) where a Division Bench of the Patna High Court, while disposing of this aspect of the matter, stated thus:--
'Order 21, Rule 58 read with Rule 59 gives right of claim only to those who had interest in and possession of the property under attachment on the day when the attachment was effected. Rule 58 is no doubt general, but Rule 59 makes it clear that the investigation is to be confined to possession on the date of the attachment.'
This being the legal position, at the instance of the claimants the present enquiry in the Court below was not maintainable. The learned Subordinate Judge in seisin of the execution case had no jurisdiction to go into the claims as the proceeding itself was not sustainable in law. This disposes of one of the contentions of Mr. Mohapatra.
7. What remains for discussion is the first question as indicated above, that is, attachment having been made before judgment under the relevant rule of 6, 38, Civil P. C. whether Rule 11 of that order is to be enforced or the attachment before judgment lapsed in view of a subsequent execution taken by the decree-holders and its disposal in terms of Order 21, Rule 57, Civil P. C. The question raised by Mr. Mohapatra and the submission made by Mr. Patra for the parties as indicated earlier will now be examined as a common question.
8. Order 38, Rule 11, Civil P. C. reads thus:--
'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 reattachment of the property.'
Order 21, Rule 57, Civil P. C. makes the following provision:--
'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 every order dismissing an execution case in which there is an attachment, the attachment shall cease unless theCourt otherwise directs.'
This aspect of the matter seems to be concluded by a series of judicial pronouncements. It is true that there is no consensus, but a view binding on me seems to have been clearly expressed in AIR 1952 Orissa 182 (Durga Dei v. Sadananda). Ray, C. J., on a difference between Jagannathadas and Panigrahi, JJ. fas both of them then were) examined this aspect of the matter, Mr. Justice Panigrahi in hisjudgment, referred to the Madras view as represented in ILR 47 Mad 483 = (AIR 1924 Mad 494 FB) (Meyyappa Chettiyar v. Chidambaram Chettiyar) and a view of the Calcutta High Court in (1912) 16 Cal LJ 86 (Ganesh Chandra v. Banwarilal) and stated,
'The provisions of Rule 57 of Order 21 had no application to a case in which an order for attachment before judgment had been obtained and that the attachment subsists not only for the first application but also for subsequent applications.'
Ray, C. J. re-examined this aspect of the matter in his judgment and quoted sumptuously from various authorities placed before him and ultimately held:
'If I am asked to give my opinion with regard to the operation of Order 21, Rule 57, I will agree with the view taken in the Calcutta High Court as well as that of the Patna High Court, rather than with the Full Bench decision of the Madras High Court. The simple reason is that on the dismissal of the execution case all orders passed by the executing Court in course of that execution proceeding are 'nullified' while the attachment before judgment is an order passed in the suit. Secondly, it has been said in the Calcutta High Court, in the cases already referred to, that the attachment before judgment enures for all successive execution applications for the first or the second or the third only. Its period of life continues until the decree is either set aside or satisfied and discharged. It becomes an attachment in execution when you execute the decree on the basis thereof, or in other words, to use the words of Sir George Rankin, C. J., which I have just now quoted, when you want to make that the basis of the sale that you are going to hold for the purpose of execution and realisation of the decree.'
The portion of the judgment of Chief Justice Rankin, reference to which has been made by Ray, C. J., reads thus:--
'Applications for execution were to be definitely dismissed if they were not adjourned to a future date. The object of the last sentence in Rule 57 is to settle the question as to whether when the application is dismissed, any attachment, made under that application, should fall to the ground or should subsist, and the legislature has provided that it is to fall to the ground. In these circumstances, it seems reasonably clear to me 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 executionhas come to nothing.'
9. Normally I should have left the matter here in view of the decision of this Court disposing of the above case. But since Mr. Patra tried to Question the propriety of the decision of this Court I have followed up the series of decisions relevant on the point up-to-date and I find that judicial opinion seems to be supporting the view taken by this Court. . Reference may be made to AIR 1962 Bom 236 (Dattatraya v. Rambhabhai) where a Division Bench of that Court in a case almost similar to the facts of the present case came to hold;
'It must be held that in the case of an attachment, before judgment Order 21, Rule 57 does not operate and the attachment still continues. If this is so, the conveyances in favour of defendants Nos. 6 and 7 and defendant No, 8 are clearly hit by Section 64 and they are inoperative and void against the purchaser,'
A similar view has also been taken In a very recent decision of the Punjab High Court in AIR 1968 Punj and Haryana 461 (Bhagwan Das v. Santokh Singh). His Lordship the Chief Justice, while speaking for the Division Bench stated thus:--
'It is true that where attachment before judgment has been made, no fresh attachment may be made of the same property after the passing of the decree and the same attachment may become an attachment for the purposes of the execution of the decree immediately on the date of the application to execute it. But by no stretch of any reasoning can attachment of the property be treated as an attachment in execution of a decree on a date on which the decree is not in existence.'
On this state of authorities I am satisfied that the contention of Mr. Mohapatra is correct, namely, that Order 21, Rule 57, Civil P. C. has no application and the attachment before judgment made under Order 38, Civil P. C. survives and is available to the decree-holder at all stages within the period of limitation until the decree obtained by him is satisfied or discharged. Applying this legal position to the present case, it must, therefore, be held that there was subsisting attachment on the date when the sales in favour of the opposite parties took place and, therefore, the sales were subject to attachment.
10. On the aforesaid analysis, it must be held that the claimants were not entitled to maintain the claims in the execution proceeding, there was valid attachment subsisting by the time when the purchases were made, the decree-holder had not waived his right under the attachment and as such the miscellaneous proceeding in the Court below was not maintainable.
11. It must necessarily follow that the learned Subordinate Judge has exercised the jurisdiction which was not vested in him in law and went wrong in directing release of the properties in ques-tion. This revision application is allowed, the impugned order is vacated and the claims made by the opposite parties stand dismissed. The petitioners would be entitled to costs of the proceeding. Hearing fee in this Court is assessed at Rs. 100 (one hundred).