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BanuddIn Sahib Vs. Arunachala Mudali - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in(1914)26MLJ215
AppellantBanuddIn Sahib
RespondentArunachala Mudali
Cases ReferredGones Chandra v. Banmari Lal
Excerpt:
- .....agree with the lower courts that the attachment before judgment did not cease to exist because the decree-holder (among his numerous execution petitions) applied once for arrest of the judgment-debtor and that application was dismissed for default2. we think that order 21 rule 57 of the civil procedure code makes an attachment cease on the dismissal of an execution application only if that attachment had been made '' in execution of ' the decree and not when it had been made before judgment in view to a possible execution of a decree which might probably be passed thereafter.3. the other contention of the appellant namely that by the petitioner's having applied in another execution petition to be allowed to share rate ably in the proceeds of the sale of these properties if they were.....
Judgment:

1. We agree with the Lower Courts that the attachment before Judgment did not cease to exist because the decree-holder (among his numerous Execution Petitions) applied once for arrest of the judgment-debtor and that application was dismissed for default

2. We think that Order 21 Rule 57 of the Civil Procedure Code makes an attachment cease on the dismissal of an execution application only if that attachment had been made '' in execution of ' the decree and not when it had been made before judgment in view to a possible execution of a decree which might probably be passed thereafter.

3. The other contention of the appellant namely that by the petitioner's having applied in another execution petition to be allowed to share rate ably in the proceeds of the sale of these properties if they were brought to sale by another decree-holder who had also attached them in execution of his decree, the present decree-holder converted the attachment before judgment into an attachment in execution is also not sustainable. Such conversion can take place only if the decree-holder applies for sale of the properties in execution of his own decree. Whether such conversion will take place even in such a case may be questioned on the authority of Gones Chandra v. Banmari Lal (1912) 16 C.L.J. 86 but it is unnecessary to decide that question for the purposes of this case. The third contention that by the decree-holder's conduct he must be deemed to have abandoned all rights under the attachment before judgment is, again not supported by anything on the record.

4. The view of the Lower Courts, therefore that no fresh attachment is necessary to entitle the decree-holder to bring the properties to sale in execution is correct, and we dismiss the appeal with costs.


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