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Valiakath Puthiah Maliyakkal Mammi Kutti Haji Vs. Thachar A. Manakkal Parameswaran Nambudri - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in35Ind.Cas.240
AppellantValiakath Puthiah Maliyakkal Mammi Kutti Haji
RespondentThachar A. Manakkal Parameswaran Nambudri
Cases ReferredAziz Bux v. Kaniz Fatima Bibi
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 57, scope of - attachment--sale stayed by appellate court--execution petition dismissed in consequence, effect of. - - 1. in this case an interesting question relating to the construction of order xxi, rule 57, of the code of civil procedure, 1908, was argued before us. 621 the learned judges corrected the mistake into which the lower court had fallen in holding that default must be construed as not including failure to take steps to carry out the directions of the court......under rule 57. we are unable to agree. under the code of civil procedure, 1882, dismissals for default by courts of first instance were regarded with disfavour, as there was an impression that these were attempts to increase the number of disposals without really deciding the matter in dispute, and as there was no provision for striking off applications, the attachments made under them were held as still subsisting, notwithstanding the disposal. rule 57 has been passed to provide against this indefinite prolongation of execution proceedings. under that rule, if the application is dismissed for any default on the part of the decree-holder, he has to apply for a fresh attachment. in all other cases of dismissal, the courts will have to decide on the facts of each case whether the order.....
Judgment:

1. In this case an interesting question relating to the construction of Order XXI, Rule 57, of the Code of Civil Procedure, 1908, was argued before us. After the respondent had got the property attached, on an appeal preferred by the judgment debtor, the sale was stayed. Thereupon the District Munsif dismissed the application. It is contended that this dismissal had the effect of putting an end to the attachment under Rule 57. We are unable to agree. Under the Code of Civil Procedure, 1882, dismissals for default by Courts of first instance were regarded with disfavour, as there was an impression that these were attempts to increase the number of disposals without really deciding the matter in dispute, and as there was no provision for striking off applications, the attachments made under them were held as still subsisting, notwithstanding the disposal. Rule 57 has been passed to provide against this indefinite prolongation of execution proceedings. Under that rule, if the application is dismissed for any default on the part of the decree-holder, he has to apply for a fresh attachment. In all other cases of dismissal, the Courts will have to decide on the facts of each case whether the order removing a petition from the file amounted to an adjudication on it, so as to prevent the attachment from subsisting. We see no warrant for extending the provisions of the rule to cases of dismissal, when there has been no default on the part of the decree-holder.

2. In Namuna Bibi v. Roshun, Meah 9 Ind. Cas. 558 : 38 C.K 482 : 15. C.W.N. 428 : 13 C.L.J. 621 the learned Judges corrected the mistake into which the lower Court had fallen in holding that default must be construed as not including failure to take steps to carry out the directions of the Court. It is also authority for the position that Courts are not entitled to reserve a right against a plain provision of law. On the other hand, Aziz Bux v. Kaniz Fatima Bibi 15 Ind. Cas. 49 : 31 A.K 490 : 10 A.L.J. 48 decides that the rule should be strictly construed. We think that this is the proper view to be taken of Rule 57.

3. As the last application was within three years of the one preceding it, the application was in time. We dismiss the Civil Miscellaneous Second Appeal with costs.


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