1. This appeal arises out of proceedings by way of a claim to properties attached in execution of a decree. The decree which gave rise to the claim proceedings was a small cause decree in favour of the husband of the present plaintiff and against defendant 2 who is the husband of defendant 1, the appellant. Execution proceedings were first taken by the plaintiff's husband to attach the property which was claimed exclusively by defendant 1, wife of the judgment-debtor, as her own, in virtue of a will. After the dismissal of the claim petition, the decree-holder, i.e. the plaintiff's husband, died and an order was passed by the executing Court: 'Decree-holder dead. Petition dismissed.' The main question in the present appeal is whether this order has the effect of raising the attachment on the land claimed by defendant 1. Evidently, the parties themselves thought that it had this effect, for, after the death of her husband, the plaintiff as his heir filed a fresh execution petition and applied for a fresh attachment. Against this attachment a fresh claim was preferred by defendant 1 and the executing Court apparently thought that there was no infirmity in this claim by reason of the prior proceedings and the claim was allowed. Hence this present suit.
2. Now the dates on which these proceedings took place threw a considerable light on the intention of the Court which passed the order dismissing the first claim petition. The dismissal was on 9th December 1929. The plaintiff's husband died some time after that date and before June 1930. On 9th June 1930 the death was reported to the Court and the first execution petition was consequently dismissed. On 19th June 1930 a fresh execution petition with a fresh application for attachment was filed by the plaintiff. The significance of these dates is that in September 1926 the decision reported in Palaniappa Chettiar v. Valliammai Achi A.I.R. (1927) Mad. 184 held that the legal representative of a deceased decree-holder could not continue the execution petition filed by the deceased decree-holder but must file a fresh petition. Though the correctness of this ruling was doubted at least as early as 1928, it was not overruled until the decision of the Full Bench in Venkatachalam Chetti v. Ramasami Servai A.I.R. (1932) Mad. 73 which was in September 1931. It may therefore, in my opinion, be inferred that the District Munsif who automatically dismissed the petition on a report of the death of the decree-holder, was passing an order according to the law as it was then understood by the Madras High Court with reference to the decision in Palaniappa Chettiar v. Valliammai Achi A.I.R. (1927) Mad. 184 The point is of importance in that if the executing Court held the view that under the law the legal representative of a deceased decree-holder had a right to continue the execution petition, the only possible interpretation of this dismissal order would be that it was one of those dubious orders passed for statistical purposes which in accordance with the accepted view of the law would not have the effect of putting an end to the execution petition or the attachment thereunder. In my opinion, having regard to the fact that at that time the decision of the Bench in Palaniappa Chettiar v. Valliammai Achi A.I.R. (1927) Mad. 184 was a clear authority so far as this High Court was concerned that it was not open to the legal representative of a deceased decree-holder to continue the same execution petition, it must be inferred that the executing Court dismissing this petition on a report of the death of the decree-holder, intended not merely to adjourn the petition, showing it as a dismissal for statistical purposes, but intended to dismiss the petition judicially as one which could no longer be prosecuted owing to the death of the party.
3. Now, it seems to me clear that if the effect of this order was to raise the attachment, the order having been passed within less than, one year after the dismissal of the first claim petition filed by defendant 1, it cannot be held that defendant 1's subsequent claim petition under the fresh attachment was barred by her failure to file a suit contesting the correctness of the dismissal of her former claim. Obviously, there was nothing to be gained by a suit contesting the correctness of an attachment which owing to extrinsic circumstances had ceased to operate and I do not think that it can be held that when the attachment has been cancelled by some other agency than a suit by the defeated claimant, it is incumbent upon the claimant to file a suit to remove an obstacle which no longer exists. If I authority is needed for this self-evident proposition it will be found in Kumara Goundan v. Thevaraya Reddi A.I.R. (1925) Mad. 1113 and Habib Ullah v. Mahmood : AIR1934All267 . The only question therefore is whether this attachment continued to subsist after the death of the decree-holder and the dismissal of his first execution petition. No specific ruling on this point has been cited before me, but the appellant relies on certain incidental observations in the case in Venkatalakshmamma v. Seshagiri Rao A.I.R. (1931) Mad. 303. In that case Reilly J. was discussing the effect of the decision in Palaniappa Chettiar v. Valliammai Achi A.I.R. (1927) Mad. 184 the correctness of which he doubted. He points out that this decision is in conflict with the long established practice of the Courts and would involve certain inconvenient and even unjust consequences. He observes:
If an execution petition is in progress and an attachment has been made and then the judgment-debtor dies, according to the principle adopted in Palaniappa Chettiar v. Valliammai Achi A.I.R. (1927) Mad. 184 that petition comes to an end and the attachment must go.
4. He points out that this would be a serious obstacle in the way of a diligent decree-holder and might adversely affect persons who have filed applications for rateable distribution and might even in an extreme case when the decree-holder dies just before the end of the 12th year result in a complete defeat of his rights. Certainly these observations rest on the assumption that when an execution petition is dismissed in accordance with the view of the law laid down in Palaniappa Chettiar v. Valliammai Achi A.I.R. (1927) Mad. 184 the result will be not a mere dismissal of the petition for statistical purposes, but a complete termination of the proceedings and the attachment thereunder. No doubt these observations do not amount to a ruling, but I respectfully agree with the reasoning which they contain. It is one thing to say that when the Court passes an order of dismissal purely for statistical purposes, not for any default of the decree-holder, but merely to prevent the file being encumbered with a petition under which nothing can be done, then notionally, at any rate, the petition remains in being and the attachment thereunder will not be vacated. But it is quite another thing to hold that when a Court, following the decision of the High Court which it is bound to follow, automatically dismisses an execution petition as soon as the death of the decree-holder is reported, there can be any notional keeping alive of that petition which has been dismissed or of the attachment thereunder. It has been suggested that since there is no specific order declaring that the petition has abated, it cannot be inferred that the executing Court actually intended to treat this petition as one which had ceased to exist by reason of the death of the petitioner. The circumstances, however, seem to me quite clearly to negative this contention. The order contains merely a reference to the death and the dismissal follows. The facts that the executing Court subsequently received a fresh petition and a fresh application for attachment and even allowed a fresh claim petition to succeed, to my mind, make it clear that the dismissal of the first application was intended to be and was in fact a complete termination of the proceedings.
5. It seems to me that not very much profit is to be got by quoting cases in which Courts have held that in effect an order ' terminating an execution proceeding whatever be the form in which it may be expressed, may be a mere statistical order putting the proceeding aside during the period when nothing could be done. The learned Counsel for the respondents has gone so far as to contend that an attachment can never be raised by any process other than by a dismissal of the petition for default under Order 21, Rule 57, Civil P.C. This seems to me to be a very extreme proposition. Certainly there are decisions in which it has been stated that because a petition was dismissed for no default on the part of the decree-holder, it must be treated as a mere statistical suspension of the execution petition and not as a final termination of it. But to hold that every attachment which has been made continues to subsist until there is a default by the decree-holder is a proposition for which no authority has been quoted and which seems to me to be patently untenable. For instance, if there is an execution petition and an attachment and after the attachment the judgment-debtor pays the amount into Court and the executing Court dismisses the petition, it cannot be said that this is a dismissal for default; it is a dismissal because the decree is satisfied and there is no longer anything to execute. But it certainly cannot be said that the attachment in such circumstances will subsist even though the decree has been satisfied.
6. It seems to me to follow that Rule 57 is not exhaustive of all the ways in which an attachment can be raised. It seems to me also to be the correct view to take that when an execution petition has been in fact and intention dismissed finally, even though the dismissal may be due to circumstances which cannot be described as the default of the decree-holder, then the attachment made under that petition must automatically cease to operate. 'When the attachment ceases to operate there is no longer any occasion for the defeated claimant to file a suit contesting the liability of the property to the attachment. Nor can it be contended that when there is a subsequent attachment and a claim against that attachment, the claim must be related back to the prior attachment of the same property under the same decree. The words 'such attachment' in Rule 58 of Order 21 make that position clear. It appears to me therefore that the claim of defendant 1 under the subsequent attachment is not barred by her failure to file a suit contesting the dismissal of her claim under the earlier attachment, which, in the view I take, had ceased to exist owing to the order dismissing the execution petition. There has been no adjudication on the merits of the suit. It follows therefore that the appeal must be allowed and the suit remanded to the trial Court for disposal after giving a finding on issue 1. The parties will be at liberty to adduce evidence. Costs will abide by the result. Court-fee paid on the memorandum of appeal will be refunded. Leave to appeal is refused.