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Krishna Ayyangar Vs. MohidIn Sahib Towther - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad275a
AppellantKrishna Ayyangar
RespondentMohidIn Sahib Towther
Cases ReferredIn Subbayya v. Venkataramayya Appa Rao
Excerpt:
- - the bare omission or failure to carry out a direction, does not ipso facto amount to a default. supposing the decree-holder is able to show that the omission is due to circumstances beyond his control, will the court still condemn him as being in default? it may well be that in spite of his best efforts, the decree-holder is unable to obtain, say the encumbrance certificate, by the due date; does his failure in such a case amount to default within the meaning of rule 57? in my opinion clearly not. i am satisfied that its conclusion is correct and the second appeal therefore fails and is dismissed with costs......p. c, reads thus:where any property has been attached in execution of a decree but by reason of 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. it was to put a stop to the practice of striking off' proceedings or removing the proceedings from the file,' that order 21, rule 57 was enacted. when an execution petition was struck off or removed from the file, the question often arose, was the attachment necessarily at an end? now order 21, rule 57, provides that it after the attachment has been effected, the execution cannot proceed by reason of the.....
Judgment:

Venkatasubba Rao, J.

1. The question raised turns upon the effect of the order, to which I shall presently refer, dismissing the plaintiff's execution petition. The plaintiff filed a suit against one Thooru Padayachi and attached the latter's properties before judgment. Subsequent to his obtaining a decree in the Court of first instance, he filed in due course an execution petition and attached the properties again. Muthuswami, the father of Thooru Padayachi, preferred a claim on the ground that the properties were his self-acquisitions and that his son had no interest in them. It must be mentioned that by then Thooru Padayachi had died; but the Court, holding that the effect of the attachment previous to Thooru Padaya-ehi's death was to suspend the operation of the rule of survivorship, decided (the father's plea as regards the properties being his self acquisitions having been negatived) that Thooru Padaya-chi's half share was liable for the debt. Prom this decision, Muthuswami filed an appeal, which, I may mention, abated on his death; and nothing turns upon it. But the facts that have a bearing on the question to be decided may be shortly stated. The claim of Muthuswami was negatived by the trial Court on 24th November 1924. On the same date the plaintiff's execution petition was adjourned to 9th December 1924 for further steps being taken. The case was taken up on 10th instead of the 9th and adjourned to the 13th. On the latter date the following order was made:

Sale papers in one week more. Jt is said that the party was ill. Adjourned to 23rd December 1921.

2. By some error the execution petition instead of being taken up on 23rd December was disposed of on 16th Jan-nuary 1925 by an order, which runs thus:

Not taken by mistake on 23rd December 1924. Sale papers not filed. Dismissed.

3. The question to be decided, is, what is the effect of this order? On 4th May 1925 the defendant purchased the properties from Muthuswami, and the plaintiff contends that the attachment continued notwithstanding the order referred to above and that no valid title therefore passed to the defendant. The plaintiff accordingly seeks a declaration that the properties are liable to be attached in execution of the decree obtained by him. Order 21, Rule 57, Civil P. C, reads thus:

Where any property has been attached in execution of a decree but by reason of 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. It was to put a stop to the practice of striking off' proceedings or removing the proceedings from the file,' that Order 21, Rule 57 was enacted. When an execution petition was struck off or removed from the file, the question often arose, was the attachment necessarily at an end? Now Order 21, Rule 57, provides that it after the attachment has been effected, the execution cannot proceed by reason of the decree-holder's default, the Court shall either dismiss the execution petition or for any sufficient reason adjourn it to a future date. Then the provision goes on to say, 'upon the dismissal of such application, the attachment shall cease.' What happened in the present case was, that the petition was taken up on 16th January 1925, instead of on 23rd December 1924, and was dismissed on that date behind the plaintiff's back and without notice to him. The point to be decided is, whether upon such a dismissal of the petition, the attachment also ceases. It has been held that to have the effect of putting an end to the attachment, the dismissal under Rule 57 should be due to the decree-holder's default, Mammi Kutti Haji v. Rameswaram Nambudiri 1917 Mad 715. Can then the dismissal behind the plaintiff's back be described as dismissal for his default? What the defendant's learned Counsel contends is, the mere fact that the plaintiff omitted to file the sale papers as required, constitutes default. I am unable to agree with this contention. Was. there default or not, is a question of fact; the bare omission or failure to carry out a direction, does not ipso facto amount to a default. Supposing the decree-holder is able to show that the omission is due to circumstances beyond his control, will the Court still condemn him as being in default? It may well be that in spite of his best efforts, the decree-holder is unable to obtain, say the encumbrance certificate, by the due date; does his failure in such a case amount to default within the meaning of Rule 57? In my opinion clearly not. It is impossible to say what the Court's decision might have been, had it heard the plaintiff on 16th January.

5. The Court must, upon such facts as are laid before it, adjudicate upon the question whether there was negligence or not. The rule says that in spite of the decree-holder's default, the Court may for sufficient reason adjourn the proceedings at a future date. This shows that the default may be an excusable default, that is to say, that the word does not necessarily import guilt or blame. It being open to the decree-holder to show that there was no negligence on his part, if he has been denied the 'opportunity of showing the facts on which he relies, it cannot be said that there has been a judicial determination of the question, whether or not there has been 'default. The terminating of the attachment is, as the rule shows, in the nature of a penalty and for that consequence to follow, the dismissal of the petition should be due to the decree-holder's default or negligence. In my view, the dismissal in the present case was not of that kind and therefore the attachment continued. In Subbayya v. Venkataramayya Appa Rao 1919 Mad 1001, Abdur Rahim, J., held that the proceeding did not come to a termination by the order of dismissal made without the purchaser being heard; Oldfield J's judgment shows that he assumed this position to be correct although he took a different view of the facts. It is unnecessary for me to go so far as this case has done, for it is sufficient to hold for the present that although the petition was dismissed, the attachment did not cease. I do not propose to enquire, in the view I have taken, how far the ground on which the lower appellate Court rests its judgment against the appellant, is sound. I am satisfied that its conclusion is correct and the second appeal therefore fails and is dismissed with costs.


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