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Ummachi Kannummal Mohammed Pathummal and ors. Vs. Subramonia Pillai and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberE.F.A. No. 11 of 1977
Judge
Reported inAIR1980Ker216
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 63; Code of Civil Procedure (CPC) (Amendment) Act, 1976
AppellantUmmachi Kannummal Mohammed Pathummal and ors.
RespondentSubramonia Pillai and ors.
Appellant Advocate P. Sukumaran Nair, Adv.
Respondent Advocate V. Ramakrishnan, Adv.
DispositionAppeal allowed
Cases ReferredT. Sundaramma v. Abdul Kharlar
Excerpt:
- - this principle is clearly expressed by sundaram chetti, j......court passed a money decree on 12-2-1955. the appellate decree is dated 2-9-1957. on 1-6-1960 the decree-holder filed an execution petition which contained three prayers: -- (1) warrant was prayed for against the second defendant (2) and (3). the properties of defendants 1 and 2 were required to be attached and sold for the realisation of the decree amount. on 1-12-1960 the decree-holder filed an attachment schedule mentioning the properties of the second defendant to be attached. the court passed an order on 12-12-1960 to attach. the attachment was effected on 20-12-1960. when the case was posted for further steps claim petition c. m. p. no. 170 of 1961 was filed by some strangers against some of the properties attached. c. m. p. no. 344 of 1961 was filed by another stranger against.....
Judgment:

Viswanatha Iyer, J.

1. The decree-holders are the appellants. Their application filed as E. P. No. 224 of 1973, dated 19-7-1973 to proceed with the execution taken by them earlier as K P. No. 73 of 1960 has been dismissed by the lower Court as barred by limitation. To understand the dispute between the parties it is necessary to state the various steps that had been taken in execution of this case. The trial Court passed a money decree on 12-2-1955. The appellate decree is dated 2-9-1957. On 1-6-1960 the decree-holder filed an execution petition which contained three prayers: -- (1) Warrant was prayed for against the second defendant (2) and (3). The properties of defendants 1 and 2 were required to be attached and sold for the realisation of the decree amount. On 1-12-1960 the decree-holder filed an attachment schedule mentioning the properties of the second defendant to be attached. The Court passed an order on 12-12-1960 to attach. The attachment was effected on 20-12-1960. When the case was posted for further steps claim petition C. M. P. No. 170 of 1961 was filed by some strangers against some of the properties attached. C. M. P. No. 344 of 1961 was filed by another stranger against the attachment of some other properties. The lower Court allowed C. M. P. No. 344 of 1961 first on 31-10-1961. The attachment over the properties mentioned in that claim petition was raised. The other claim petition was also allowed on 15-3-1962. Then the execution petition was posted for further steps. The decree-holder on 11-8-1962 filed a proclamation schedule and also the process for issuing notice of proclamation. On 29-8-1962 the Court passed an order calling upon the decree-holder to file a statement whether this proclamation schedule is proper in the light of the order dated 15-3-1962 raising the attachment. Though the decree-holder took two adjournments to file the statement, for his default in not filing the same, the E. P. was dismissed on 9-11-1962. In the meanwhile the decree-holder filed two suits against the two orders stated above raising the attachment of the properties. Against the order on C. M. P. No. 344 of 1961 he filed O. S. No. 51 of 1962 and against the other order he filed O. S. No. 12 of 1963. Both those suits were tried together and they were allowed by judgment dated 19-7-1966. The defendants in those suits respectively filed appeals A. S. Nos. 37 and 38 of 1907 before this Court. But, they were also dismissed on 23-1-1971, Pending the appeals before this Court on 24-7-1968 the decree-holder filed E. P. No. 9 of 1968 to attach and sell the properties of the first defendant. That was pending when the above appeals were disposed of on 23-1-1971. On 19-7-1973 the decree-holder filed the present E. P. No. 224 of 1973 in which he narrated all the above fact, his filing the first E. P. No. 73 of 1960, the order thereon and the result of the suits which he filed. According to him as a result of the decrees vacating the orders raising the attachment, the attachment continues and therefore the properties may be proclaimed for sale and for that purpose E. P. No. 73 of 1960 may be revived. The main objection of the judgment-debtors was that this application being more than 12 years of the decree is barred by limitation. The lower Court has accepted the same. Hence this appeal.

2. From the narration of the facts mentioned above it is clear that the Executing Court wrongly raised the attachment effected on the properties in 1960. The decree-holder had to file a suit as provided for under Order 21, Rule 63 to vacate that order and that he could successfully do only with the dismissal of the appeals A. S. Nos. 37 and 38 of 1967 by this Court on 23-1-1971. When the Court passed a wrong order and the decree-holder had to resort to a remedy provided by law to get the order vacated he cannot be penalised if the proceedings taken by him take a long time and 12 years elapse after the passing of the decree. In such a case it is open to the decree-holder to move the Executing Court to revive the application which has been dismissed as a consequence of the wrong order passed by the Executing Court. This is because the release from attachment on the claim to the attached property being allowed is only provisional in character and is subject to the result of the suit which is allowed to be brought under Order 21, Rule 63, C.P.C. That suit is 'simply a form of appeal' and the plaint therein is for review of a summary decision (see Phulkumari v. Ghanshyam (1907) 35 Ind App 22), a suit to set aside an order passed on an application made to set aside the attachment (See Section 41, Court-fees Act), and from that standpoint, the order for release does not put an end to the attachment so as to leave the claimant free to deal with the property as he likes; the effect of the decree setting aside the order is to maintain uninterrupted the attachment originally made. This is clear from the judgment of Sir Richard Couch, C. J. in Mahomed Warris v. Pitambar ((1874) 21 WR 435) followed bv Mukerjee, Actg. C. J. in Protap Chandra v Sarat Chandra (AIR 1921 Cal 101). The observation of Sir Richard Couch, C. J. reads thus:--

'A suit was brought and the plaintiff obtained a decree establishing his right, namely, a right to attach the property, showing that the order for the release of the property from attachment was improper. The effect of that decree must be to revive the attachment, or rather not to revive attachment, but to set aside the order of release which had been made, and therefore to make the property still subject to the attachment, to restore the state of things that had been disturbed by the order of release.'

It has also been held in Ramachandrayya v. Nageswara Rao (AIR 1944 Mad 126) by Somayya, J. that a claim suit is a continuation of the claim proceedings and the decree allowing the suit of the decree-holder restores the attachment from the beginning. It follows from this that the dismissal of the execution petition is not due to default or neglect on the part of the applicant but for a reason which turned out to be untenable. One of the first and highest duties of all Courts is to take care that the act of the Court does no injury to the suitor and it is the duty of the Court to rectify it. So despite a final dismissal of an execution petition in this case on a day to which it was posted as the decree-holder was prevented by the earlier order to proceed with the sale of the property attached there was no fault on his part and it could be revived. This principle is clearly expressed by Sundaram Chetti, J. in T. Sundaramma v. Abdul Kharlar ((1933) ILR 56 Mad 490 at page 503 : (AIR 1933 Mad 418) (FB)) in the following terms :--

'The principle of law deducible from a long course of decisions seems to be that an application for execution which has been finally and properly dismissed cannot be revived .......... Where an execution petition can be deemed to have been not finally disposed of and can be treated as still pending in the eye of law, the subsequent execution application may be treated as one for the continuance of the former one. Where the former execution application was dismissed finally, but for some reason (not due to any default or neglect on the part of the applicant) which subsequently turned out to be untenable, the later execution application would be deemed to be one for a revival of the former one.'

3. Then the next question is whether there is any time limit to apply for revival or continuance. Even if the residuary Article 137 applies (it is not necessary to finally decide it in this case) the decree-holder has come within 3 years of the final disposal of the appeal filed by the defendants against the decree passed against them in the claim suit. So there is no limitation.

In the result the order of the lower Court is set aside and the appeal is allowed.


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