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Kishore Singh Vs. Udhyog Mandir - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberFirst Appeal No. 4 of 1974
Judge
Reported inAIR1976Raj7; 1975()WLN465
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 57 - Order 38, Rule 11
AppellantKishore Singh
RespondentUdhyog Mandir
Appellant Advocate N.M. Masliwal, Adv.
Respondent Advocate K.N. Tikku, Adv.
DispositionAppeal dismissed
Cases ReferredRamchandra Gochhikar v. Ramchandra Biswal
Excerpt:
civil procedure code - order 21 rule 57 and order 38 rule 11--attachment before judgment cannot be equated to attachment in execution.;order 21 rule 57 c.p.c. does not apply to an attachment before judgment. it is also for the reason that the attachment is effected much prior to the existence of the decree and it cannot therefore, be equated to an attachment in execution.;where attachment before judgment is made by the plaintiff and his suit is decreed, order 58 rule 11 c.p.c., applies and such attachment enures for all successive execution application section it survives and is available to the decree holder, if submitted within limitation until the decree it satisfied or discharged. - industrial disputes act, 1947. section 2(s): [m.s. shah, sharad d. dave & k.s. jhaveri,jj] workman ..........in execution is not the same thing as attachment before judgment and even by virtue of order 38, rule 11 attachment before judgment is not transformed into the attachment in execution. it accepted the allahabad view expressed in abdul hamid v. mst asghari begum (air 1953 all 173) (fb).15. decision in motijha v. jowala prasad, air 1937 pat 626 represents the patna view. their lordships observed :'there is nothing in order 38, rule 11, civil p. c. to give colour to the view that for the purposes of order 21, rule 57, attached in execution' is a phrase that covers 'attachment before judgment'. the word 'attachment' in the sentence 'attachment shall cease' in order 21, rule 57 must mean the attachment in execution of the decree. hence the dismissal of the decree-holder's application for.....
Judgment:

J.P. Jain, J.

1. This appeal by the judgment-debtor is directed against the order of the Additional District Judge No. 1. Jaipur City dated 5-11-73 passed in Execution Case No. 15 of 1972.

2. Facts leading to this appeal are as follows:

The respondent obtained a money decree against the appellant, judgment-debtor on 23-11-62. This decree was upheld in appeal by the High Court on 29-7-70. During the pendency of the suit the decree-holder got the property of the judgment-debtor attached under Order 38, Rule 5, C.P.C. He took out execution application on 3-4-63 which was dismissed on 31-8-63 for default. His second application dated 30-8-71 for execution was also dismissed on 22-1-72 on account of non-prosecution. The decree-holder then applied for the sale of the property under attachment on 29-3-72. The judgment-debtor filed an objection that the property cannot be sold as no fresh attachment has been sought. According to him the attachment had ceased to exist after the first execution application was dismissed. There, were other objections as well but I am not concerned with those objections in the present appeal. The learned executing Court held that the attachment before judgment survived for every execution application, and no fresh order of attachment was necessary for proceeding to effect sale. This order has been challenged by the judgment-debtor in this appeal.

3. I have heard learned counsel for the parties at length. Various authorities representing the conflicting views were read out before me. Mr. Kasliwal learned counsel appearing for the appellant placed reliance on the view taken up by the Madras High Court in Meyappa Chettiar v. Chidambaram Chettiar, AIR 1924 Mad 494 (FB). This is a decision of Full Bench of five Judges. Three Judges were of the view that the provisions of Order 21, Rule 57 apply to an attachment before judgment which is converted into attachment in execution when the decree passed in the suit is said to be executed. It will be useful to reproduce Order 21, Rule 57 here:

'Rule 57. 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.'

4. Two learned Judges of that Court Schwabe C.J. and Wallace J. were of the opinion that the attachment before judgment lasts until the Court puts an end to it by an order to that effect, or until it is otherwise brought to an end by reason of any other provisions of Order 38 but that it cannot by implication to be brought to an end by the provisions of Order 21, Rule 57, C.P.C. It may also be noticed here that this Full Bench considered its earlier view expressed in Venkatasubbiah v. Venkata Seshaiya, (1918) ILR 42 Mad 1 = (AIR 1919 Mad 752), where it was held by Phillips and Kumaraswamy Sastri JJ. that Order 21, Rule 57, C.P.C. has no application to attachment before, judgment. Hence an attachment before judgment does not cease to have effect because of the dismissal of the subsequent application for execution for default of prosecution. This view was reconsidered by the Full Bench in Meyappa Chettiar's case (AIR 1924 Mad 494) (FB) where by majority it overruled the earlier view and held that a party, who has obtained an attachment before judgment and has subsequently had his execution petition dismissed for want of due diligence in presenting the necessary papers to the Court loses the priority that he had enjoyed by reason of his attachment before judgment. It was also held that attachment before judgment becomes an attachment in execution, after the suit has been decreed.

5. This view was followed in Kuppuswami v. Rangai Goundan, AIR 1962 Mad 383. The learned Judge dealing with the case observed :

'Order 38, Rule 11. in effect equates an attachment before judgment made in execution of a decree and it should, therefore, follow that under Order 21. Rule 57 the Court is competent to make an order with regard to the attachment when it makes an order in relation to an execution application.'

6. The learned Judge again observed :

'that even where an execution application is dismissed by the executing Court under Order XXI, Rule 57, the Court is bound to make a suitable order with regard to the subsistence of the attachment or otherwise. Whether such a dismissal of the execution application is for statistical purposes or not, the order of the Court in so far as the attachment is concerned cannot be linked up with the scope of the order on the execution application. This order distinctly gives a definite life to the subsistence of the attachment and thereafter the attachment cease's. I can see no provision of law whereunder an attachment which was brought to a termination by an order of Court, can be revived. It follows therefore that before the property could be brought to sale, a decree-holder must necessarily ask for its attachment. Since the respondent has not done so his petition is liable to be dismissed on that ground alone.'

7. Another case which follows the Madras view is Kangayya Naidu v. Jaya-mangala Reddeyya. AIR 1960 Andh Pra 634. Following the Full Bench decision in Meyappa Chettiar's case (AIR 1924 Mad 494) (FB) their Lordships observed as follows :

'Attachment before judgment is also governed by Order 21, Rule 57, since the property attached in execution within ambit of Order 21, Rule 57 includes property attached before judgment where there is a decree followed by execution petition for the purpose of bringing the attached property to sale.'

8. This decision copiously reproduced the observations of Coutts TrouterJ. in the leading majority judgment of theFull Bench.

9. The other High Courts have expressed conflicting views. The view of this Court has not been made available in any precedent. In the decision in Akhey Ram v. Basanti Lal, AIR 1924 All 860, Sulaiman J. for the Bench on the plain wording of the rule, held that Rule 57 of Order XXI professedly applies to a case where a property has been attached in execution of a decree. He was not prepared to extend the meaning of the expression 'attached in execution' to the attachment before judgment. He referred to Order 38, Rule 7 and observed that it referred to the mode of attachment and not to the way in which the attachment ceased. This Bench decision of the Allahabad High Court followed the earlier Madras view expressed in Venkatasubbiah v. Venkata Seshaiya (1918) ILR 42 Mad 1 = (AIR 1919 Mad 752). This view was approved by the Full Bench of the High Court in Abdul Hamid v. Mst. Ashgari Begum, AIR 1953 All 173 (FB). They clearly dissented from the view expressed by the Madras High Court in Meyappa Chettiar's case (AIR 1924 Mad 494) (FB). Their Lordships observed that:

'the provisions of Order 21. Rule 57, C. P. C. do not apply to attachments effected before judgment. Consequent on the dismissal of an execution application for default of the decree-holder, the attachment before judgment does not cease.'

10. The view of the Calcutta High Court was for the first time expressed in Ganesh Chandra v. Banwari Lal ((1912) 16 Cal WN 1097). The matter again came for consideration in Shibnath Singh v. Saberuddin Ahmed, AIR 1929 Cal 465, Rankin C.J., who spoke for the Bench, held that Ganesh Chandra's case was rightly decided. He also agreed with the dissenting judgments of Schwabe C.J. and Wallace J. in Meyappa Chettiar's case (AIR 1924 Mad 494) (FB). His Lordship observed:

' Rule 57, Order 21 was a new provision introduced in 1908. 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.'

11. He also took notice of Rule 11 of Order 38 where it is provided that it shall not be necessary upon an application for execution to apply for re-attachment of the property. He further observed:

'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 execution has come to nothing.'

12. He also laid down that there is nothing under Order 38. Rule 11, C.P.C. to give colour to the view that for the purposes of Order 21, Rule 57 'attachment in execution' is a phrase which covers attachment before judgment. He dissented from the majority view expressed by Madras High Court in Meyappa Chettiar's case (AIR 1924 Mad 494) (FB). The view expressed by Rankin C.J. was followed by Das Gupta J. in Ayezali Mir v. Mahanandabarui, AIR 1949 Cal 320. It was held that the dismissal of the execution case for the default of the decree-holder, the attachment before judgment does not cease Order 21. Rule 57, C.P.C. cannot be extended to such attachment. The attachment subsists even after the dismissal of the execution.

13. The Bombay High Court took the same view as expressed in Dattatraya Baliram v. Rambhabai. AIR 1962 Bom 236. The Bench held that Rule 57 of Order 21 does not come into operation in the case of an attachment before judgment.

14. The Full Bench of the Kerala High Court in Valli Ammal Arumughom Ammal v. Narayan Panicker, AIR 1963 Ker 16 (FB) overruled the earlier view of its High Court contained in Muhammed Abdul Khadir v. Padmanabha Pillai (AIR 1952 Trav-Co 414) (FB) and in Arumugham Ammal v. Nayinar Paniker, (AIR 1962 Ker 60), and held that attachment in execution is not the same thing as attachment before judgment and even by virtue of Order 38, Rule 11 attachment before judgment is not transformed into the attachment in execution. It accepted the Allahabad view expressed in Abdul Hamid v. Mst Asghari Begum (AIR 1953 All 173) (FB).

15. Decision in Motijha v. Jowala Prasad, AIR 1937 Pat 626 represents the Patna view. Their Lordships observed :

'There is nothing in Order 38, Rule 11, Civil P. C. to give colour to the view that for the purposes of Order 21, Rule 57, attached in execution' is a phrase that covers 'attachment before judgment'. The word 'attachment' in the sentence 'attachment shall cease' in Order 21, Rule 57 must mean the attachment in execution of the decree. Hence the dismissal of the decree-holder's application for execution for default does not terminate the attachment before judgment'

16. The Assam High Court follows the Calcutta view and it is expressed in Dungar Mall Agarwalla v. Amiya Kumar Chattopadhya, AIR 1961 Assam 96. The view has been expressed in the following words:

'An attachment of a property before judgment does not stand on par with attachment in execution of a decree, in which case alone the provisions of Order 21, Rule 57, Civil Procedure Code applies.'

17. The Madhya Pradesh High Court in Hakimuddin v. Gulam Ali, AIR 1963 Madh Pra 261 adopted the Calcutta view and it was observed by the Bench dealing with the case that an attachment before judgment survives even after an execution petition filed after the passing of a decree has been dismissed due to the default of the decree-holder, which prevented the Executing Court from proceeding further in execution.

18. The view expressed by Punjab and Haryana High Court in Bhagwan Das v. Santokh Singh, AIR 1968 Punj & Har 461 is in keeping with the view expressed by the Calcutta and Allahabad High Courts. It was held by Mehar Singh C. J, for the court that 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 was not in existence.

19. The decision in Durga Dei v. Sadananda, AIR 1952 Orissa 182 represents the earliest view of the Orissa High Court. It followed the view expressed by Rankin C.J. in Shibnath Singh v. Saberuddin Ahmed (AIR 1929 Cal 465). There was difference of opinion in Durga Dei's case between Jagannath Das and Pani-grahi JJ. on account of the Madras view in Meyappa Chettiar's case (AIR 1924 Mad 494) (FB). The matter was referred to Ray C.J. He observed as follows :

'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 ail 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.'

This view was subsequently followed in Ramchandra Gochhikar v. Ramchandra Biswal, AIR 1970 Orissa 164.

20. From the reading of the above decisions it is abundantly clear that all the High Courts except Madras and Andhra Pradesh are of the view that Order 21, Rule 57, C.P.C. does not apply to the attachment before judgment. As noticed earlier the two Judges out of five have given dissenting judgments in Meyappa Chettiar's case (AIR 1924 Mad 494) (FB) and their view has been accepted by various other High Courts.

21. From the plain reading of Order 21, Rule 57, C.P.C. it is difficult to accept the contention of Mr. Kasliwal that attachment before judgment becomes an attachment in execution after the decree has been passed, within the meaning of Order 21, Rule 57. I am therefore inclined to hold that Order 21, Rule 57, C.P.C. does not apply to an attachment before judgment. It is also for the reason that the attachment is effected much prior to the existence of the decree and it cannot, therefore, be equated to an attachment in execution. With all respects, I am unable to agree with the majority view of the Madras High Court in Meyappa Chettiar's case. I accordingly hold that where attachment before judgment is made by the plaintiff and his suit is decreed, Order 38, Rule 11. C.P.C. applies and such attachment enures for all successive execution applications. It survives and is available to the decree-holder, if submitted within limitation until the decree is satisfied or discharged.

22. Another contention of Mr. Kasliwal is that claims against attachment before judgment are dealt with under Order 21, Rule 58, C.P.C. Rule 58 also uses the similar expression 'attached in execution'. His submission is that on this analogy Order 21, Rule 57 is applicable to attachment before judgment. This argument does not bear much scrutiny. Reference may be made to Order 38, Rule 8, C. P. C. which provides specifically about the investigation of claims to property attached before judgment. The rule reads as follows:--

'Where any claim is preferred to property attached before judgment, such claim shall be investigated in the manner hereinbefore provided for the investigation of claims to property attached in execution of a decree for the payment of money '

23. In the result the appeal fails and it is hereby dismissed. In the circumstances there will be no order as to costs.


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