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P.C. Raghavachariar Vs. Anantha Reddi and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Judge
Reported in31Ind.Cas.911
AppellantP.C. Raghavachariar
RespondentAnantha Reddi and ors.
Cases ReferredVardiparthi Ramayya v. Korukonda Jayannadham
Excerpt:
attachment - subsistence of attachment, how determined--order not withdrawn--presumption--right to subsistence of attachment acquired under old code--civil procedure code (act v of 1908), order xxi, rule 57, whether has retrospective effect. - .....or dealt with on the merits, the presumption is that it is in force.2. the second ground taken by the subordinate judge is equally untenable. there is no reason for holding that the new code gave retrospective effect to the order passed in august 1907. this is not a matter of procedure only. the attaching creditor had acquired a right to subsistence of the attachment under the old code. this right should not be taken away by giving retrospective operation to order xxi, rule 57, of the new code of civil procedure. the decisions in khande subbayya v. nara subba reddy 27 ind. cas. 792 : 2 l.w. 4 and in vardiparthi ramayya v. korukonda jayannadham 27 ind. cas. 568 support this view.3. we must reverse the decree of the subordinate judge and remand the case to him for disposal on the merits.....
Judgment:

1. Defendants Nos. 2 to 5 mortgaged to the 1st defendant certain properties. One Arunachella obtained a decree for money against the 1st defendant. An application for attachment was made on the 15th July. After notice to the debtors, the attachment was made on the 29th July. On the 10th August, the District Munsif dismissed the petition as further steps were net taken. It is not clear what further steps were required to be taken by the attaching creditor. There is nothing in the order or in the papers before us to indicate that the creditor was guilty of any laches on his part and that the Court dismissed the petition on that ground. Under these circumstances, we must regard the dismissal as not having the effect of putting an end to the attachment. The Judicial Committee pointed out that the question whether by reason of the disposal of a petition, the attachment ceased to subsist, should be determined with reference to the facts of each case. We find no materials in this case for holding that the disposal was not ' for statistical purposes and was due to any neglect on the part of the creditor. The shortness of the time between the attachment and the dismissal, is an indication the other way. We are supported in this view by Rangaiami Chetti v. Periasami Mudali 17 M.P 58 : 3 M.L.J. 211. As pointed out in Imtiaz Ali v. Bishambhar Das 10 Ind. Cas. 245 : 8 A.L.J. 691 and Daud Ali Shah v. Ram Prasad 30 Ind. Cas. 787 : 13 A.L.J. 750 : 37 A.P 542, unless the order is withdrawn or dealt with on the merits, the presumption is that it is in force.

2. The second ground taken by the Subordinate Judge is equally untenable. There is no reason for holding that the new Code gave retrospective effect to the order passed in August 1907. This is not a matter of procedure only. The attaching creditor had acquired a right to subsistence of the attachment under the old Code. This right should not be taken away by giving retrospective operation to Order XXI, Rule 57, of the new Code of Civil Procedure. The decisions in Khande Subbayya v. Nara Subba Reddy 27 Ind. Cas. 792 : 2 L.W. 4 and in Vardiparthi Ramayya v. Korukonda Jayannadham 27 Ind. Cas. 568 support this view.

3. We must reverse the decree of the Subordinate Judge and remand the case to him for disposal on the merits not dealt with by him already. Costs will abide the result.


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