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Natesa Nilangiriyar Vs. V. Raju Mudaliar - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtChennai
Decided On
Reported inAIR1943Mad322; (1943)1MLJ225
AppellantNatesa Nilangiriyar
RespondentV. Raju Mudaliar
Cases ReferredHari Sabaji v. Shrinivas Vithal I.L.R.
Excerpt:
.....treat the attachment before judgment effected in regard to the property situated at chidambaram as property attached in execution of his decree as well although in point of fact he had disclosed no such intention. at all events i see no reason to hold that by making an application for sale of one property within the jurisdiction of one court, a decree-holder may be deemed to have manifested his intention in regard to the property situated in other districts as well so that those properties might be considered to have been also attached in the execution of his decree. it is more likely in that case that he would not think of proceeding against properties in other districts and the idea of bringing other properties to sale would occur to him only either when he finds it difficult to..........chettiar v. chidambaram chettiar (1923) 46 m.l.j. 415 : i.l.r. mad. 483. and it was held that the property attached in executior execution included the property attached before judgment when the judgment was followed by a decree in favour of the plaintiff and the decree had been followed by an execution by an execution petition for the purpose of bringing the attached property to sale or in or in the words of ramesam, j., ' when it is definitely sought to be for execution.' it would therefore follow that upon the dismissal of that application, the attachment effected either before or after judgment must be held to have come to an end. placing reliance on this decision,, learned counsel for the appellant contended on the one hand that with the dismissal of the application on the 20th.....
Judgment:

Abdur Rahman, J.

1. The only questions that fall to be determined in this second appeal are,

(a) whether the attachment before judgment of the lands situate at Chidambaram can be held to be an attachment in execution of the decree, although no application was made for their sale but only for the sale of other lands situate at Guddalore which were also attached before judgment by the same order?

(b) Did the attachment before judgment cease to exist in respect of Chidambaram properties when the application in execution was dismissed in regard to those situate at Cuddalore?

2. The two questions separately formulated for the sake of clearness depend for their answer on the first one. If the answer to that question happens to be in the affirmative, the answer to the second one would also be the same. But if the answer to the first question is in the negative, the reply to the second would have to be similar and this appeal will have to be, in that case, rejected.

3. The facts which lead up to the present appeal may be now stated. Two suits were instituted at Cuddalore against the same person in 1920. The plaintiff brought one (O.S. No. 27 of 1920) for the recovery of Rs. 4,800 in the Court of the Subordinate Judge while the defendant brought the other (O.S. No. 409 of 1920) for Rs. 1,878 in the Court of the District Munsiff. The plaintiff in the latter suit (who is the defendant in the present litigation) had obtained an attachment before judgment against his defendant's lands situate at Cuddalore and Chidambaram. Both the suits were decreed in due course. There is a concurrent finding of both the lower Courts that the present defendant had, in the first instance, applied for execution against properties situate in Cuddalore alone but this application was finally dismissed without satisfaction on the 20th December, 1928. An attempt was made by learned Counsel for the appellant to challenge this finding but being a finding of fact and having regard to the application which the defendant had subsequently made for the attachment of Chidambaram lands only, 1 am of opinion that this decision could not be challenged in second appeal and was, in my opinion, correctly decided. This view was expressed by me during the arguments which subsequently proceeded on that assumption.

4. It is not denied that in view of the provisions of Order 21, Rule 57, Civil Procedure Code (as amended in Madras in 1926) and those of Order 38, Rule 11, the attachment of lands situate at Cuddalore must be held to have come to an end on the 20th December, 1928, when the application for execution in regard to their sale was dismissed. The defendant had then applied on 'the 11th November, 1931 (Ex. I) for transfer of his decree to the Court of the Subordinate Judge at Cuddalore to enable him to apply for execution against properties in Chidambaram. But as he had taken no steps to pursue the application and the papers were returned to him by the District Munsiff of Cuddalore who had passed the decree, he applied again on the 10th November, 1932, for transfer of his decree to the Subordinate Judge at Cuddalore. This application was granted and the execution transferred to the Subordinate Judge's Court at Cuddalore where the defendant presented his petition for execution, Ex. D on the 9th December, 1932, and asked for the sale of Chidambaram properties. These were sold and purchased by him (the defendant) on the 4th October, 1934--the sale being confirmed in the following month. The plaintiff had however in execution of his decree in O.S. No. 27 of 1920 already brought the lands situate at Chidambaram to sale, purchased them for a sum of Rs. 3,500 in partial satisfaction of his decree and obtained possession.

5. The plaintiff objected to the delivery of possession by a claim petition but this was dismissed by the Principal Subordinate Judge, Cuddalore, on the 14th September, 1934, and an appeal against that order met with the same fate on the 17th October, 1935. The plaintiff therefore brought the present suit out of which the present appeal arises. It was dismissed by the District Munsiff of Chidambaram on the 16th August, 1938, and the order of dismissal was confirmed by the Subordinate Judge of Cuddalore on the 18th November, 1940. Hence this appeal.

6. It would thus be seen that the same lands at Chidambaram were purchased first by the plaintiff and later by the defendant. . The defendant however contended that the sale to the plaintiff although earlier in point of time was ineffectual against him on account of the attachment before judgment issued by the District Munsiff of Cuddalore after the institution of his suit O.S. No. 409 of 1920. This, it was urged, subsisted and became an attachment in execution on his application dated the 10th November, 1932 and the 9th December, 1932, the title by the Court-sale thus passing completely in his favour. On the other hand, it was urged on behalf of the appellant that the dismissal of the application regarding Cuddalore property would, in view of the wordings of Order 21, Rule 57, entail the consequence of the cessation of attachment in respect of Chidambaram lands as well. Learned Counsel for the appellant contended that in so far as no application for attachment was made by the defendant for about twelve years after the decree was obtained by him in O.S. No. 409 of 1920 on the 13th December, 1920, and the conferment of advantage of attachment before judgment (which could not have created a charge but could only have brought the property in custodia legis) was conditional on the defendant's diligence, the privilege to proceed against the property of the judgment-debtor must be held to have ceased on the defendant's default in making the application for such a long time. In short, the contention was that the attachment before judgment must be deemed to have come to an end on the failure of the defendant in pursuing his remedy merely by lapse of time. The harm otherwise caused to bonafide purchasers of property for value without notice particularly as there was no system of registration of attachments in this country would be, it was urged by learned Counsel for the appellant, serious and very often irremediable. In the end an attempt was made to argue that the attachment must be found to have been waived by the defendant and that the defendant's application, Ex. D, presented on the 9th December, 1932, might have been barred by time. The points, as waiver and limitation were not raised on behalf of the appellants in the trial Court and no evidence was led by either of the parties in regard to them. It was therefore not possible for me to permit them to be raised for the first time in this appeal. That is why I overruled them and did not call upon the respondent's counsel to say anything in reply in regard to them.

7. The question whether the attachment before judgment issued by the Court in O.S. No. 409 of 1920 had not ceased to exist on the 20th December, 1928, with the dismissal of the application regarding Cuddalore properties and had continued to subsist on the date when the lands were sold to the plaintiff on the 4th October, I934, is purely a question of law and the equitable considerations pressed by learned Counsel for the appellant are obviously out of place. What does it matter if the system of registration of attachment were not in vogue in this country or if an attachment did not create a charge on the property? After all no attachment could be validly effected unless the judgment-debtor had been prohibited from transferring or charging the property in any way and all other ' persons from taking any benefit from such transfer or charge.' This order was or must be taken to have been duly proclaimed as required by Order 21, Rule 54 (2), Civil Procedure Code. And once that is found or presumed--the proclamation being one of the well-known methods by which the public can be notified--it would be no longer open to any member of the public including the plaintiff to challenge the sale subject of course to the condition that all the other necessary steps required by law to effect an attachment had been taken. Nothing transpired during the trial and nothing has been said here which might lead me to suppose that the attachment was otherwise invalid or ineffective. As to the other points of general consideration raised by learned Counsel for the appellant it is wholly immaterial if no title were created by the attachment as long as any further alienation of the property was prohibited and the prohibition must be held to have remained in force as long as the attachment subsisted. Realising this difficulty, learned Counsel for the appellant advanced the contention that mere inaction on the part of the decree-holder should be regarded, in the circumstances of the case, as sufficient to discharge the attachment. There is no force in that contention. This is not one of the recognised methods by which the attachment validly effected by a Court ceases to exist. The question of the defendant's absence of due diligence seems by itself to me therefore to be irrelevant. I am not however considering the effect that the defendant's waiver or estoppel would have had on the validity of his sale, had they been pleaded by the plaintiff in time and substantiated by evidence.

8. There was a divergence of opinion at one time in regard to the interpretation of the words ' has been attached in execution of the decree ' used in Order 21, Rule 57, Civil Procedure Code. Two constructions were being placed upon them. The narrower construction was to the effect that the attachment must have been after and expressly in execution of the decree and therefore when an application for execution was dismissed, that attachment alone which had been effected after the decree had been passed would come to an end. According to the wider construction, a property was considered to have been attached in execution of a decree even though the date of the actual attachment might have been before the judgment and therefore the dismissal of an application for execution on account of the decree-holder's default would entail the consequence of the cessation of the attachment even if effected before judgment. This was in virtue of the joint reading of the aforesaid section with Order 38, Rule 11, Civil Procedure Code. The latter constriction construction was accepted by a majority of the Full Bench of this Court in Meyappan Chettiar v. Chettiar v. Chidambaram Chettiar (1923) 46 M.L.J. 415 : I.L.R. Mad. 483. and it was held that the property attached in executior execution included the property attached before judgment when the judgment was followed by a decree in favour of the plaintiff and the decree had been followed by an execution by an execution petition for the purpose of bringing the attached property to sale or in or in the words of Ramesam, J., ' when it is definitely sought to be for execution.' It would therefore follow that upon the dismissal of that application, the attachment effected either before or after judgment must be held to have come to an end. Placing reliance on this decision,, learned Counsel for the appellant contended on the one hand that with the dismissal of the application on the 20th December, 1928, in regard to the properly situated at Cuddalore, the attachment before judgment obtained both at Chidambaram and at Cuddalore must be held to have ceased to exist while according to the learned Counsel for the respondent on the other, the dismissal of the application on the 20th December, 1928, in regard to the property situated at Cuddalore could have had no effect on the properties situated at Chidambaram that had also been attached before judgment. The real question therefore is whether by making an application for execution in respect of the property situated at Cuddalore, i.e., by making an election to proceed against the properties situated at that place, the decree-holder could be regarded to have manifested his intention to treat the attachment before judgment effected in regard to the property situated at Chidambaram as property attached in execution of his decree as well although in point of fact he had disclosed no such intention. Nor having regard to the fact that the execution Court at Cuddalore had no jurisdiction on the properties situated at Chidambaram was it necessary for him to have done so. If the application for execution in the Cuddalore Court was not for the attachment of the property situated at Chidambaram, as obviously it was not, and if that application was dismissed by the Court on the 20th December, 1928, how can the attachment in regard to the property situated at Chidambaram be held to have come to an end? Learned Counsel for the appellant would, in view of the words used in Order 21, Rule 57, contend that in so far as the attachments in respect of the properties situated at Cuddalore and Chidambaram were effected by one order, the dismissal of the execution application in respect of the property at Cuddalore would have the legal consequence of also terminating the attachment of the property at Chidambaram. This necessitates an examination of the provisions of Order 21, Rule 57, Civil Procedure Code The rule reads as follows:

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.

The following rule has been substituted in this Presidency for Rule 57:

Where any property has been attached in execution of a decree and the Court hearing the execution application either dismisses it or adjourns the proceedings to a further date, it shall state whether the attachment continues or ceases : Provided that when the Court dismisses such an application by reason of the decree-holder's default the order shall state that the attachment do cease.

I shall advert to the Madras rule later. But leaving that out of consideration for the time and confining myself to the provisions of Rule 57, it would appear that the attachment which is to cease under the last sentence of this rule is only in respect of the property that came to be attached in pursuance of an application for execution hut which could not be proceeded with on account of the decree-holder's default. Thus the penalty provided for by the Legislature in the shape of a release from attachment appears to be in respect of that property alone which was attached on the decree-holder's prayer contained in that execution application. If that is (he correct construction of this rule, it would seem to follow that the penalty is not 10 he imposed in regard to applications which were not given or in regard to properties which were not attached by means of a prayer contained in the application for execution that could not be proceeded with on account of the decree-holder's default. In short according to my interpretation 'the attachment' only refers to the property which was covered by the application that was dismissed and no further. Order 38, Rule 11 renders a re-attachment of the property attached before judgment unnecessary and according to the Full Bench decision in Meyappan Chettiar v. Chidambaram Chettiar (1923)46 M.L.J. 415 : I.L.R. Mad. 483 this rule may be read jointly with Order 21, Rule 57, with the result that if the application for execution in regard to the property attached before judgment happens to be dismissed on account of the decree-holder's default, the attachment in regard to that property would cease to exist. But there appears to be no warrant for the proposition that a decree-holder's default in the conduct of an execution application for the sale of one property situate within the jurisdiction of one Court may entail the consequence of the termination of the attachment of a property situate within the jurisdiction of another Court simply because both the properties situated within the jurisdiction of two Courts happened to be attached by one order passed before judgment. There seems to be no reason to extend the scope of the sanction provided in the last sentence of Rule 57 which was apparently enacted to deal with those properties alone in regard to which an application was made and which were attached in consequence of that application. Some emphasis appeared to be laid during the course of his arguments by learned Counsel for the appellant on the fact that the order of attachment before judgment was passed by the District Munsiff of Cuddalore who had also dismissed the application for execution in regard to property situate at that place. But this to my mind is entirely immaterial. It is the order of dismissal by an execution Court that falls within the purview of Rule 57 and the fact that the execution Court happened to be the Court which had issued attachment before judgment appears to be wholly irrelevant. If the contention advanced by learned Counsel for the appellant were correct, the dismissal of an application by one execution Court in regard to the property situate within its jurisdiction would have the effect of the termination of attachment in other Courts--they may be two, three or more--whether the order attaching them before judgment was passed by one of the Courts where the properties to be attached were situate or by a Court that had no jurisdiction on any of the properties ordered to be attached before judgment. At all events I see no reason to hold that by making an application for sale of one property within the jurisdiction of one Court, a decree-holder may be deemed to have manifested his intention in regard to the property situated in other districts as well so that those properties might be considered to have been also attached in the execution of his decree. Let me take for instance a case where the value of the property in regard to which an application for execution is given by a decree-holder is, in his opinion, sufficient to satisfy the whole of his decree. Why should a fictitious intention be imputed to the decree-holder in that case and why should he be assumed to have made his election in regard to that property alone so that with the dismissal of that application the attachment of other properties also in other jurisdictions may be regarded to have come to an end? It is more likely in that case that he would not think of proceeding against properties in other districts and the idea of bringing other properties to sale would occur to him only either when he finds it difficult to proceed against the property against which he wished to proceed in the first instance or when the claim is not entirely satisfied by the sale of that property. But suppose the decree-holder has made his application for execution simultaneously in the various districts in which he had the property of his defendant attached before judgment, why should he be deprived of his right to proceed against other properties if his application for execution in one district happens to be dismissed on account of some default of his in that Court? I see no reason to take the view that in spite of the manifestation of the decree-holder's intention to convert the attachment of various properties in various Courts effected in pursuance of an order of attachment before judgment into attachments in execution of his decree, the dismissal of one application in one Court on account of his default may lead the other Courts also to dismiss his applications for execution for the reason that he happened to have committed a default, in the execution of his decree in one Court. The real fact is that Rule 57 Only contemplates an application in regard to the entire property attached in execution of a decree and has no application when only a portion of the property ordered to be attached by a Court could be proceeded against by that application. But when an attachment is effected in pursuance of an order of attachment before judgment, the properties to be attached may be in various places and for the purposes of Rule 57, the attachment of every property in every district must be regarded to be the Subject-matter of a different attachment, which it. undoubtedly and in fact is ordinarily properties under Rule 57 of Order 21, would only be within the jurisdiction of the Court executing the decree, but that is not so in regard to the properties attached under Order 38, Rule 5. The penalty provided under Order 21, Rule 57 can therefore only be in respect of the property covered by the application and could . not in my opinion entail the consequence of discharging the attachment in regard to the properties to proceed against which there was no application. before the Court and which the Court could not for want of jurisdiction. entertain. It would therefore follow that by making an application to the Court at Cuddalore the decree-holder can only be held to have the property within the jurisdiction of that Court attached in execution of his decree and if that application was dismissed by the Court on the decree-holder's default, the attachment in that Court and in that Court only must be held to have ceased. This order of dismissal of the application could not have any effect on the property situated at Chidambaram. I am supported in my conclusion by a decision of the Division Bench of the Bombay High Court in Hari Sabaji v. Shrinivas Vithal I.L.R.(1931) 55 Bom. 693 where it was held that Order 21, Rule 57, necessarily presupposed ' an application for execution for attachment and sale of the property,' and if therefore there was no application for attachment and sale of a particular property, Order 21, Rule 57 would have no application in regard to that property.

9. The position in Madras is about the same. Under the rule substituted for Order 21, Rule 57, it is incumbent upon the Court hearing the execution application to state at the time when it is dismissed or adjourned whether the attachment was to continue or to cease. Under the proviso to that rule however, the Court has no option but to state in its order expressly that the attachment would have to cease if the execution application were to be dismissed on account of the decree-holder's default. Nothing has been said in the order by the Cuddalore Court dismissing the execution application whether the attachment was or was not to cease. This should have been said. But even if there was an express order stating that the attachment had ceased, it could have, as I have held above, only referred to or affected the Cuddalore property attached by that Court alone in pursuance of the order for an attachment before judgment and it was only the attachment of Cuddalore property that was converted on account of the decree-holder's application into an attachment in execution of his decree arid when the application was dismissed, the attachment of Cuddalore property and Cuddalore property alone must be held to have ceased.

10. For the above reasons, I shall answer the questions formulated by me in the beginning of this judgment in the negative. The appeal accordingly fails and is dismissed with costs.


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