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Shibnath Singh Ray Vs. SaberuddIn Ahmed - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1929Cal465
AppellantShibnath Singh Ray
RespondentSaberuddIn Ahmed
Cases ReferredGanesh Chandra Adah v. Banwari Lal Ray
Excerpt:
- .....was passed on 10th june 1920; an appeal from the decree was dismissed on 9th february 1921; the decree-holder applied for execution on 14th june 1921; and took out a fresh attachment on 24th june 1921; this execution proceeding was ultimately dismissed for default on 6th september 1921; another application for execution was made on the 19th of that month.2. this was the position at the date of the plaintiff's purchase. after the plaintiff's purchase, the decree-holder again took out a fresh attachment on 3rd december 1921, and the property was ultimately sold to the decree-holder on 12th may 1922. defendant 1 is the heir of the decree-holder.3. now the question is whether the attachment before judgment made on 10th august 1919, was subsisting on 29th september 1921 notwithstanding.....
Judgment:

Rankin, C.J.

1. This is a second appeal by defendant 1 from the concurrent decisions of the Subordinate Judge of Nadia and the Munsif of Ranaghat. The plaintiff's suit was for a declaration of title to certain land, for ejectment of defendant 1 and for setting aside the purchase of the suit land by defendant I on 12th May 1922, in execution of a decree against defendant 2. The plaintiff's claim is rested on a prior purchase made by him at a private sale on 29th September 1921, from defendant 2. The question between the parties turns upon whether or not, on the date of the plaintiff's purchase, the property was under attachment. The material dates are as follows:

The property was attached before judgment on 10th August 1919; a decree was passed on 10th June 1920; an appeal from the decree was dismissed on 9th February 1921; the decree-holder applied for execution on 14th June 1921; and took out a fresh attachment on 24th June 1921; this execution proceeding was ultimately dismissed for default on 6th September 1921; another application for execution was made on the 19th of that month.

2. This was the position at the date of the plaintiff's purchase. After the plaintiff's purchase, the decree-holder again took out a fresh attachment on 3rd December 1921, and the property was ultimately sold to the decree-holder on 12th May 1922. Defendant 1 is the heir of the decree-holder.

3. Now the question is whether the attachment before judgment made on 10th August 1919, was subsisting on 29th September 1921 notwithstanding that the application for execution brought on 14th June 1921, had been dismissed for default on 6th September. The Courts below have held that the attachment before judgment had by that time ceased to exist, that there had been a re-attachment on 24th June 1921, which, under Rule 57, Order 21, Civil P.C., came to an end when the application for execution was dismissed on 6th September.

4. The defendant-appellant relies upon the case of Ganesh Chandra Adak v. Banwari Lal Roy [1912] 16 C.W.N. 1097. It does not appear from the report of that case that after the attachment before judgment the property had been re-attached in execution. But it was held that an attachment before judgment subsists for the purpose of a subsequent execution, notwithstanding that the first application for execution has been dismissed. It was said that the provisions of Rule 57, Order 21, have no application to a case in which an order for attachment before judgment has been obtained. On behalf of the respondents, it is contended, first, that by re-attaching in execution, the decree-holder has waived or abandoned the attachment before judgment; secondly, that the attachment before judgment marges in the subsequent attachment; thirdly, that on a true construction of Rule 57, Order 21, an attachment before judgment comes to an end when the application for execution is dismissed under that rule, fourthly, that in the present case, under the first application for execution a sale of the property had been held, though this did not ultimately proceed to completion by sale certificate and that the effect of that sale was to make the attachment before judgment an attachment in execution: Arunachalam Chetty v. Periaswami Servai A.I.R. 1921 Mad. 163.

5. On the third of these propositions, it is contended that Ganesh Chandra's case [1912] 16 C.W.N. 1097, was wrongly decided and that the decision of the Full Bench of the Madras High Court in Meypappa Chettiar v. Chidambaram Chettiar A.I.R. 1924 Mad. 494, should be followed. This is a substantial point and we must carefully consider whether we ought to dissent from Ganesh Chandra's case [1912] 16 C.W.N. 1097 and refer this matter to a Full Bench

6. In my opinion the decision in Ganesh Chandra's case [1912] 16 C.W.N. 1097 was right and I agree in the result arrived at by the dissenting judgments of Schawbe, C.J., and Wallis, J., in Meyyappa's case A.I.R. 1924 Mad. 494 though not in all the arguments which were adduced by them. Rule 57, Order 21, was a new provision introduced in 1908. It is evident from the language of the rule itself, and it is still more evident from the circumstances under which it was passed, that it was intended to provide a remedy for the grievance or inconvenience which is apt to arise, where, after an attachment in execution, the application for execution cannot further be proceeded with by reason of the decree-holder's default. This was, and still is, a very common case. This decree-holder makes some informal arrangement to give the judgment-debtor time without obtaining full satisfaction, of the decree, the application for execution is not further prosecuted; it is not withdrawn; neither party attends. In these circumstances, the object of the rule is to say that the Court must make either an order for adjournment or an order of dismissal. The reason why it was necessary to require the Court, if it did not adjourn a proceeding to a definite date, to dismiss the application for execution formally and definitely can be amply illustrated from the decided cases.

7. In the absence of a definite order of dismissal the files of the Courts became encumbered with a number of applications for execution which ware waterlogged and derelict, and a practice arose whereby such applications were ordered to be ' struck off.' This was a practice not justified by the Code and in cases where attachments in execution had already been ordered, the question arose whether the effect of an order ' striking off ' was that the attachment made upon application for execution was itself struck off or whether it remained notwithstanding such an order. Many other awkward and important questions arose out of this practice and the object of Rule 57 was to ensure that this illogical and inconvenient practice should be stopped. Applications for execution were to be definitely dismissed if they were not adjourned to a future date. The object of the last sentence in Rule 57 is to settle the question whether, when the application in execution is dismissed, any attachment made under that application should fall to the ground or should subsist, and the legislature has provided that it is to fall to the ground. In these circumstances, it seems reasonably clear to me that it is no part of the intention of this rule to say that an attachment before judgment, which existed before any application could be made in execution, and which prima facie would continue to have effect if no application for execution had been made, should fall to the ground merely because a subsequent application for execution has come to nothing.

8. I quite agree with Courts-Trotter, J., in Meyyappa's case A.I.R. 1924 Mad. 494, that this is not a question of giving a strict construction to a penal provision. Still the phrase 'attached in execution of a decree ' can only be extended beyond its proper meaning by reason of an implication required by the object of the rule or else by showing very clearly that it is required by some other rule of a germane character. Prima facie the ' mischief ' of the rule involves no reference to attachments before judgment, A perusal of the judgments in the Madras case does not disclose to me any ground upon which it could be held that unless upon the dismissal for default of an application for -execution the attachment before judgment shall come to an end the true intention of any other rule is interfered with. Indeed I do not gather that any of the judgments of the Judges who formed the majority in that case claims that any other rule necessitates this for its own sake. What is argued is that they throw light upon the meaning of Rule 57. In this way they attribute to B. 57 a meaning which is foreign to its purpose.

9. Again by Rule 11, Order 38, it is provided that

it shall not be necessary upon an application for execution to apply for a re-attachment of the property,

10. From this it is contended that, upon an application for execution being made, the attachment before judgment becomes an attachment in execution and nothing more, so as to be subject to all the infirmities of an attachment in execution. Doctrines of merger and other theories are ingrate upon the simple language of the Code that it shall not be necessary to re-attach. By reason of this provision no execution based upon an attachment before judgment can be distinguished in validity or character from an execution based upon an attachment in execution unless indeed some particular enactment can be seen to be addressed to this distinction. There is, however, nothing in Rule 11, Order 38, to give colour to the view that for the purposes of Rule 57, Order 21 'attached in execution' is a phrase which covers attachment before judgment.

11. Upon the third contention of the plaintiff-respondent, I am, therefore, of opinion that the decision of this Court in Ganesh Chandra's case [1912] 16 C.W.N. 1097, was correct; and that there is no necessity to send this matter to a Full Bench.

12. As regards the other contentions, it seems to ma that they have little substance. At one time it was the practice to re-attach in execution, although an attachment before judgment was subsisting. In Ramkrishna Das Surrowji v. Surfunnissa Begum [18S0] 6 Cal. 129, this practice was referred to by the Judicial Committee. The question is whether a re-attachment in execution, notwithstanding the terms of Order 38, R 11, is of itself a waiver or abandonment of the attachment before judgment. I can see no ground for saying as a proposition of law that a man who does something which is not necessary must be taken to abandon any right. In this case there is neither an express abandonment nor any reason to suppose that abandonment was intended. It was indeed manifestly contrary to the interest of the decree-holder.

13. As regards the contention that the attachment before judgment merge3 in the subsequent attachment, and, therefore, becomes subject to all the infirmities of the subsequent attachment, I respectfully differ from the opinion expressed by Ramesam, J. in the Madras case [1912] 16 C.W.N. 1097. The effect of two attachments on the same property is merely that the property is under attachment, no doubt, but a person entitled to the benefit of either one of the attachments remains, in the absence of abandonment, entitled to it. No doctrine of merger seems to me to be in point.

14. As regards the respondent's fourth point, I fail to see why, because an ineffective sale was held under the first application for execution, it can be contended that the provisions of Rule 57, Order 21, become applicable to an attachment before judgment. The provisions of Rule 11, Order 38, may well operate to prevent its being said that a sale in execution of a decree is without any basis of attachment in execution, even although the decree-holder has availed himself in execution of the attachment before judgment. This argument appears to me to be subject to the same objection as applies to many of the arguments adduced in the judgments in Meyyappa's case A.I.R. 1924 Mad. 494 It ignores the scops and purpose of the rule which is to be interpreted, namely R 57, Order 21.

15. In my opinion this appeal should be allowed and judgment entered for defendant 1 with costs in all Courts against the plaintiff.

Mukerji, J.

16. I fully concur and desire to add a few words as regards the three cases of this Court upon which reliance has been placed on behalf of the plaintiff respondent to induce us to dissent from the view taken in the case of Ganesh Chandra Adak v. Banwari Lal Ray [1912] 16 C.W.N. 1097. One of those cases in Bhugwan Chunder Kritiratna v. Chundra Mala Gupta [1902] 29 Cal. 773. In that case the question that arose was whether, under Section 285, Civil P.C. (Act 14 of 1882), the Court which attached the property under execution before judgment, ranked with a Court which attached it after decree, in the application of that section and it was held that it did. The only relevancy of this decision is that in the section aforesaid the words ' has been attached in execution' occurred, which, however, have been altered to ' is under execution ' in the corresponding section, namely Section 63 of the present Code, for reasons which have no bearing upon the present question. The next case is Sewdut Roy v. Sree Canto Maity [1906] 33 Cal. 639, which only favours the view that, on an application for execution being made, attachment effected before judgment became an attachment in execution for the purposes of Section 295, Civil P.C. (Act 14 of 1882). The two attachments may be treated as on the same footing and persons who are affected by such attachment may be in the same position so long as the attachments subsist, but from that it hardly follows that all the incidents relating thereto must necessarily be identical. Indeed the Code itself treats them as different in several important respects. As regards the remarks of Mookerjee, J. in the third case, on which reliance has been placed, namely, that of Protap Chandra Gope v. Sarat Chandra A.I.R. 1921 Cal. 101, they appear to be obiter, as the case itself was one in which no question of attachment before judgment arose. The remarks are in these words:

In a case of attachment before judgment, the general rule applies that a revival of execution proceedings does not operate as a revival of the attachment so as to prejudice the rights of strangers who have, in the interval, acquired a title to the property ' : Patringa, Koer v. Madhava Nand Ram [1911] 14 C.L.J. 476 and Mahabharat Dutta v. Sarja Kanta De [1918] 3 Pat. L.J. 310.

17. The remarks do not necessarily indicate that an attachment before judgment falls with the dismissal of an execution petition for default, and the cases on which they purport to rely had nothing to do with such an attachment. In this Court, the case of Ganesh Chandra Adah v. Banwari Lal Ray [1912] 16 C.W.N. 1097, does not appear to have been dissented from. I have carefully read the judgments of the learned Judges of other Courts who have-taken a different view, but I am not convinced that we should dissent from the view that has been uniformly taken by this Court for a fairly long time.


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