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Konchadu Dalayya Vs. Malla Sundara Narayana and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1936Mad91; (1935)69MLJ908
AppellantKonchadu Dalayya
RespondentMalla Sundara Narayana and ors.
Cases ReferredSundaram v. Mausa Mavuthar
Excerpt:
- - the decree was passed on the 23rd march, 1931 and on the 3rd july, 1931, he filed an application for execution as well as e. further, where we are satisfied that the lower court has proceeded on a clear misapprehension of that section we do not think we will be justified in driving the petitioner to a separate suit, merely on the ground that that remedy may also be open to him......properties thus attached before judgment in o.s. no. 12 of 1930 had been brought to sale by the district munsif's court of sompeta in execution of the decree in o.s. no. 81 of 1930 on the file of that court, and he accordingly prayed that the amount realised under that sale may be called for and distributed by the sub-court, rateably amongst various decree-holders. we find from the endorsements on the execution petition no. 52 of 1931 that on the 6th july, the learned subordinate judge intimated the fact of this application to the district munsif of sompeta and asked that the money might be sent over to the sub-court or be retained in the district munsif's court pending further orders from the sub-court. we later on find a note of intimation from the district munsif of sompeta that.....
Judgment:

Varadachariar, J.

1. This revision petition arises out of an application under Sections 63 and 73 of the Code of Civil Procedure by the decree-holder in O.S. No. 12 of 1930 on the file of the Court of the Subordinate Judge of Ganjam. Pending O.S. No. 12 of 1930, the plaintiff had obtained an attachment before judgment of certain properties of the defendant. The decree was passed on the 23rd March, 1931 and on the 3rd July, 1931, he filed an application for execution as well as E.P. No. 52 of 1931 out of which the present Civil Revision Petition arises. In the execution application he asked for sale of the properties already attached before judgment. The last column in that execution application refers to the attachment before judgment but we must take it that though the column refers to a schedule attached to the petition, the schedule was not in fact put into Court along with the execution petition.

2. In E.P. No. 52 of 1931, however, the decree-holder stated that the properties thus attached before judgment in O.S. No. 12 of 1930 had been brought to sale by the District Munsif's Court of Sompeta in execution of the decree in O.S. No. 81 of 1930 on the file of that Court, and he accordingly prayed that the amount realised under that sale may be called for and distributed by the Sub-Court, rateably amongst various decree-holders. We find from the endorsements on the execution petition No. 52 of 1931 that on the 6th July, the learned Subordinate Judge intimated the fact of this application to the District Munsif of Sompeta and asked that the money might be sent over to the Sub-Court or be retained in the District Munsif's Court pending further orders from the Sub-Court. We later on find a note of intimation from the District Munsif of Sompeta that the money was retained in his Court pending the orders of the Sub-Court.

3. The main execution application, was returned for production of the copy of the order of attachment before judgment and the schedule and when it was re-presented, it was again returned for amendment of certain errors in the schedule. It was finally re-presented on the 31st August, 1931, when the Subordinate Judge passed an order thereon calling for sale-papers.

4. In the present proceedings we are concerned only with the sale proceeds realised in the Sompeta District Munsif's Court by sale of some of the properties attached before judgment. It would appear that the sale took place on the 23rd June, 1931 and the money was deposited in the District Munsif's Court, on the 6th July, 1931. The question is whether, on these facts, the case falls under Section 63 of the Code of Civil Procedure or not. Incidentally the learned Subordinate Judge has discussed the effect of Section 73 of the Code of Civil Procedure also, and he was of opinion that the plaintiff's application for execution must be deemed to have been admitted only on the 31st August, 1931, when it was re-presented after all the necessary corrections, and it was only after the order for sale papers was made on that date that the attachment before judgment must be deemed to have become an attachment in execution, that is, on the 31st August. As the sale proceeds had been paid into the District Munsif's Court so long ago as the 6th July, it followed, according to him, that the case would not be covered by Section 63 or Section 73 of the Code.

5. We are unable to agree with this view. If it were necessary to base our decision on the presentation of the main execution application, we should have been prepared to hold that the execution application presented on the 3rd July, 1931, was not really defective in law, as it referred, to the attachment before judgment which had been ordered by that very Court. We may also refer in this connection to Abdul Salam v. Veerabhadra : (1929)57MLJ97 where it was held that even if there were defects in the Execution petition the petitioner will be entitled to the benefits of Section 73 if the petition was in substantial compliance with the law. In any event, under the provisions of Order 21, Rule 17, when the execution petition was re-presented with the necessary amendments, it must be deemed to have been a valid presentation on the date of the original presentation itself. In the present case it seems to us to be scarcely necessary to rely upon the formal application for execution, because on the same day E.P. No. 52 of 1931 was also presented and so far as the properties sold by the Sompeta District Munsif's Court on the 23rd June are concerned, the only method of execution that the present plaintiff could have pursued was to ask the Sub-Court to send for the sale proceeds. To that extent E.P. No. 52 of 1931 is itself a proper and sufficient execution application to satisfy the requirements of law.

6. It is no doubt true that Section 63 of the Code of Civil Procedure requires that the property must be under attachment in execution of decrees of more Courts than one. But we are unable to agree with the learned Subordinate Judge that the property must be deemed to be under 'attachment in execution' so far as the Sub-Court decree was concerned, only when the order was made on the 31st August calling for sale-papers. Order 38, Rule 11 of the Code of Civil Procedure provides that when an attachment before judgment has been made 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 reattachment of that property. It was at one time held that an attachment before judgment is so radically different in character from an attachment in execution that some of the provisions in the Code relating to attachment in execution should not be applied to attachment before judgment. Difficult questions of this kind have arisen under Order 21, Rule 57 and Article 11 of the Limitation Act. It is however unnecessary to deal with the earlier cases in view of the decision of the Full Bench of this Court in Meyappa Chettiar v. Chidambaram Chettiar I.L.R.(1923) 47 Mad. 483 : 46 M.L.J. 415 (F.B.). The learned Subordinate Judge refers to some of the observations of the learned Judges in that case and also to the observations in other cases which suggest that it might he possible to treat an attachment before judgment as becoming an attachment in execution only after some order in execution had been passed by the Court. These dicta, it seems to us, must be read in the light of the circumstances and the facts of the cases in which they were made. As a question of principle, if an attachment before judgment can be treated as an attachment for purposes of execution at all, it is difficult to see what necessity there is for an order of Court. The more reasonable view seems to us to hold that from the time the decree-holder applies for execution, he elects to avail himself of the attachment before judgment and from that moment the attachment before judgment becomes an attachment available for purposes of execution. Far from the observations in the Full Bench case being opposed to this view, we find that on a careful examination the observations of the three learned Judges, who constituted the majority in the Full Bench case, support the above view. For instance, at page 501 Courts Trotter, J. (as he then was) observes:

The turning point comes in my opinion when the decree-holder by filing an execution petition has shown that he means to execute his decree; and I am myself unable to escape from what seems to me the logical conclusion that, when he has elected to proceed in execution, an attachment which he has obtained and on which he must necessarily base his petition and demand for sale, becomes automatically an attachment in execution. (See also page 502).

Ramesam, J.

7. Similarly says at page 505:

In my opinion, the effect of Order 38, Rule 11, is, though it does not say so in so many words, that the attachment before judgment becomes an attachment in execution when it is definitely sought to be made available for execution.

8. In the judgment of Waller, J., also, the reference to Order 21, Rule 17, at page 522 indicates that the learned Judge was thinking of the date of the presentation of the petition; and this is confirmed by his reference at page 523 to the opinion of Wallis, C.J., in an earlier case and by the following sentence at page 524;-

When once it has been found that for one purpose, an application to execute converts an attachment before judgment into an attachment in execution, the conclusion is to my mind, inevitable that the conversion operates for all purposes.

9. We do not therefore think that there is anything in principle or authority to compel us to hold that a person who has obtained an attachment before judgment cannot avail himself of Section 63 of the Code of Civil Precedure till some order has been passed by the Court upon his application for execution.

10. On behalf of the respondent, Mr. Jagannadha Das raised a question as to the expediency of our interfering in revision in the circumstances of this case. He did not maintain that this Court had no jurisdiction to interfere in revision; and in the face of the principle recognised by the Full Bench in Sundaram v. Mausa Mavuthar : AIR1921Mad157 it could hardly be maintained that when the lower Court refuses to exercise the powers vested in it by law and holds on an erroneous view of law that a case does not fulfil the requirements of the provisions of the Code, this Court could not interfere in revision. His point was that as the person to whom rateable distribution is refused has his remedy by way of separate suit this Court should not interfere in revision. He also pointed out that as the monies realised in the Sompeta District Munsif's Court have since been distributed to various decree-holders difficult questions may arise as to the way in which they can be got back. The answer to the first part of his argument is that the present case falls under Section 63 and not under Section 73 of the Code of Civil Procedure. Further, where we are satisfied that the lower Court has proceeded on a clear misapprehension of that section we do not think we will be justified in driving the petitioner to a separate suit, merely on the ground that that remedy may also be open to him. As to the effectiveness of our order and the extent of relief that the petitioner could get in the present proceedings on remand, we do not wish to say anything at this stage. That will depend upon various facts and events that might have happened meanwhile and it will be for the lower Court to give the petitioner whatever relief may be practically possible, and proper in the circumstances; all questions bearing upon the reliefs which the petitioner could get on remand are left open.

11. The order of the lower Court is set aside and the case is sent back for disposal on the merits after considering the other points raised in the counter petition. The costs of this revision petition will abide and follow the result.


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