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Athiappa Asari Vs. Chinna Goundar and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1980)2MLJ149
AppellantAthiappa Asari
RespondentChinna Goundar and ors.
Cases ReferredPachai Ammal v. Thirugnanasambandam
Excerpt:
- .....of a small cause decree, dated 6th june, 1966 in s.c. no. 213 of 1966. on 28th march, 1967, the decree-holder in that suit filed e. p. no. 183 of 1967 for attachment and sale of the judgment-debtor's 1/3rd share in the suit property. attachment of the property was actually effected in the said execution petition on 28th march, 1967. on 14th august, 1967, the court ordered the decree holder to file batta and sale papers within one week, and posted the execution petition for further hearing to 7th october, 1967. on 7th october, 1967, the executing court passed the following order:sale warrant batta not paid. execution petition dismissed.attachment to continue for three months.3. with e. p. no. 183 of 1967 disposed of thus the decree-holder later filed e. p. no. 1074 of 1967. in that.....
Judgment:

V. Balasubrahmanyan, J.

1. This second appeal raises two questions arising under the execution chapter of the Civil Procedure Code. (i) construction and application of Order 21. Rule 57(1) : and (ii) construction of an order passed by an executing Court dismissing an execution petition under that rule on account of the default of the decree-bolder. These two questions have arisen as between the appellant and the first respondent. Both are court-auction purchasers of the self-same item of property belonging to the same individual. They purchased the property at different times, in execution of different decrees against the same judgment-debtor. As between the two Court auction-sales, than in which the appellant purchased the property was prior in point of time. Although this was so in fact, the first respondent asserted his title as a purchaser under the subsequent Court auction purchase, on the score that the earlier auction sale in the appellant's favour was void. Both the Courts below accepted this contention and upheld the first respondent's title to the property as against the appellant's claim.

2. The question in this second appeal is whether the Courts below were right in holding that the earlier execution sale in which the appellant purchased the property was an invalid sale. To consider this question some further facts relating to this Court auction-sale would be in point. This auction sale was held in execution of a small cause decree, dated 6th June, 1966 in S.C. No. 213 of 1966. On 28th March, 1967, the decree-holder in that suit filed E. P. No. 183 of 1967 for attachment and sale of the judgment-debtor's 1/3rd share in the suit property. Attachment of the property was actually effected in the said execution petition on 28th March, 1967. On 14th August, 1967, the Court ordered the decree holder to file batta and sale papers within one week, and posted the execution petition for further hearing to 7th October, 1967. On 7th October, 1967, the executing Court passed the following Order:

Sale warrant batta not paid.

Execution petition dismissed.

Attachment to continue for three months.

3. With E. P. No. 183 of 1967 disposed of thus the decree-holder later filed E. P. No. 1074 of 1967. In that execution petition the Court straightaway ordered sale of the property on 12th January, 1968. Pursuant, to this order the property was actually brought to sale on 6th March, 1968 It was in this Court sale that the appellant purchased the property.

4. In the Courts below, it was urged on behalf of the first respondent that when the previous E. P. No. 183 of 1967 was dismissed for default of the decree-holder, that order of dismissal had the effect of cancelling the subsisting attachment over the property, and when, in the subsequent E. P. No. 1074 of 1967 the Court ordered sale of the property, it did so without there being in existence a prior attachment of the property. It was accordingly urged by the 1st respondent that the sale in favour of the appellant pursuant to the order in E. P. No. 1074 of 1967 was invalid. Both the Courts below accepted this contention of the first respondent and held that the appellant did not obtain any title to the property in his Court auction purchase in execution of the decree in S.C. No. 213 of 1966.

5. Before me, learned Counsel for the appellant submitted that the sale ordered by the executing Court in E. P. No. 1074 of 1967 was a perfectly valid order, since, according to him, the property was under attachment pursuant to a valid order under the earlier execution petition, and this attachment was subsisting both when the subsequent E. P. No. 1074 of 1967 was filed and when in that subsequent execution petition an order for sale was passed. He relied on the terms of the order passed by the executing Court on 7th October, 1967, in the earlier E. P. No. 183 of 1967, wherein the Court had clearly directed the attachment 'to continue for three months' from the date of the said order.

6. Learned Counsel for the first respondent on the other hand, urged that the construction sought to be placed by the appellant on the aforesaid order dated 7th October, 1967 in E. P. No. 183 of 1967 cannot be upheld both in terms of the provisions of Order 21, Rule 57 of the Code of Civil Procedure and on the terms of the very order passed by the executing Court.

7. On the arguments addressed, as aforesaid, the two questions which I have mentioned at the beginning of this judgment arise for consideration. The first question involves the construction of Order 21, Rule 57. Sub-rule (1) of this rule provides that where any property has been attached in execution of a decree and the Court hearing the execution application either dismisses it or adjourns the proceeding to a future date, it shall state whether the attachment continues or ceases. This sub rule has a proviso and it runs thus:

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.

8. As I understand this rule, the consequence of dismissing an execution petition would vary according as the said dismissal is for the decree-holder's default, or is for some other reason. Where the dismissal of an execution petition is for a reason other than the decree-holder's default, the rule confers a discretion on the executing Court either to direct that the attachment shall continue or to direct that the attachment shall cease. Where, on the other hand, the Court dismisses an execution petition for the default of the decree-holder, then the rule leaves the execution Court with no option but to direct that the attachment shall cease. In the present case, the dismissal of E. P. No. 183 of 1967 was for the reason that the decree-holder did not pay the batta for the sale warrant. This clearly was the decree-holder's default as contemplated by Rule 57(1). This being so, the only consequential direction which the executing Court could pass while dismissing the execution petition for default would be to direct that the attachment shall cease.

9. The legal position I have set out above is not res integra, but is covered by a decision of a Division Bench of this Court reported in Venkat Rao v. Surya Rao : AIR1950Mad2 . The ruling of the Division Bench is authority for two positions. The first point decided was that Order 21, Rule 57(1), as in force in force in Madras State, would apply not only to attachments in execution of a decree, but also to attachments before judgment. The second point which the Bench laid down related to the construction of Order 21, Rule 57(1) with special reference to the proviso. Dealing with that subject, Satyanarayana Rao, J., who spoke for the Bench observed as under:

As executing Court may dismiss the execution application for other reasons than the default of the decree-holder... Under the proviso, however, while the Court dismisses an application by reason of the decree-holder's default, it is obligatory on the part of the Court to state that the attachment will cease.

10. Learned Counsel for the appellants perhaps realising the weight of the authority of this decision urged that the order dated 7th October, 1967 in E P. No. 181 of 1967 did not really fall within the mischief of the proviso to Order 21, Rule 57(1) of the Code. According to the learned Counsel, the order in question should not be construed as one which dismissed the execution petition for the decree-holder's default, but as one which did not dismiss the execution petition, but rather kept it alive and continued the attachment for three months.

11. I am unable to accept the construction urged by the appellant's learned Counsel. When the executing Court had in so many words stated that the execution petition stands dismissed, it Would be going against the plain terms of that order to hold that the execution petition was not dismissed. The very necessity felt by the Court to observe that the attachment shall continue for three months was only because the Court had unequivocally dismissed the execution petition.

12. Learned Counsel, however, referred me to a few decisions of this Court such, for instance as V. K. Murugappa Mudaliar v. P.M. Dasappa Nayanim Varu and Ors. : AIR1950Mad314 , Palaniappa v. Muthu Veerappa : AIR1966Mad406 , Kanappa Mudaliar v. Chella Kutti Udayar (1972) 2 M.L.J. 7 : 85 L.W. 187 : I.L.R. (1972) Mad. 287, Pachai Ammal v. Thirugnanasambandam (1369) 1 M.L.J. 277, But these decisions can be of no help to us in the present case, where our task is to construe the order dated 7th October, 1967 in E. P. No. 183 of 1967. In this task there can, in the strict sense, be no such thing as a binding precedent at all, for each order has to be construed on its own terms in the light of its attendant circumstances. What the Courts were minded to decide in the reported decisions cited by the appellant's counsel was the construction of the particular orders passed by the execution Court in the individual cases before them. It may be observed that in all these case, little or no attempt had been made to construe the object and scope of the proviso to Order 21, Rule 57(1). On the question of construction of this provision, the only authority is that of the Division Bench of this Court, in the case I have already referred to.

13. I am satisfied that with the dismissal of the E. P. No. 183 of 1967 on 7th October, 1967, the subsisting attachment also ought properly to have been directed by the Court to cease forthwith. In so far as the Court made an order that the attachment should continue for three more months notwithstanding the dismissal of the execution petition, for the decree-holder's default, the Court was making a direction which was wholly outside its jurisdiction and quite against the teeth of the mandatory proviso to Order 21, Rule 57(1). It seems to me that in the matter of construction of an order such as this I should prefer that construction which accords with the proviso to Order 21, Rule 57(1) and not that which goes against it.

14. The effect of this construction of the order is that when the Court dismissed the decree-holder's execution petition for default, the attachment also ceased co instanti. The result was that when in the subsequent execution petition the Court straightaway directed the sale of the property, it did so of a property which had not been under attachment under a subsisting order of attachment. The order of sale passed by the executing Court in the later execution petition was accordingly invalid. The Court auction which took place persuant to that order was equally invalid and it did not confer any title on the appellant who purchased it in that auction. I am, therefore, convinced that the decision of the Courts below rejecting the appellant's claim of title to the suit property is quite in accordance with the law.

15. As for the first respondent's own claim to the suit property which the Courts below have upheld there is no dispute that the first respondent had purchased the very same property in a Court auction sale in execution of a different decree in a different suit against the same judgment-debtor. The appellant has not questioned the validity of these execution proceedings. When once the earlier execution sale in the appellant's favour is found to be invalid, the effect of such a finding is that the property continued to remain the property of the judgment-debtor. It follows that in the only valid execution sale which took place thereafter, the property was admittedly purchased by the first respondent. These were the reasonings on which the Court below had upheld the title of the first respondent to the suit property. I have no hesitation in agreeing with these reasonings.

16. In the result, this second appeal will stand dismissed. But, in the circumstances there will be no order to costs.


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