Konchadu Dalayya vs Malla Sundara Narayana and Others

Varadachariar, J.—This revision petition arises out of an application under Sections 63 and 73 of the CPC by the decree-holder in O.S.

No. 12 of 1930 on the file of the Court of the Subordinate Judge of Ganjam. Pending O.S. No. 12 of 1930, the plaintiff had obtained an

attachment before judgment of certain properties of the defendant. The decree was passed on the 23rd March, 1931 and on the 3rd July, 1931,

he filed an application for execution as well as E.P. No. 52 of 1931 out of which the present Civil Revision Petition arises. In the execution

application he asked for sale of the properties already attached before judgment. The last column in that execution application refers to the

attachment before judgment but we must take it that though the column refers to a schedule attached to the petition, the schedule was not in fact

put into Court along with the execution petition.

In E.P. No. 52 of 1931, however, the decree-holder stated that the properties thus attached before judgment in O.S. No. 12 of 1930 had been

brought to sale by the District Munsif''s Court of Sompeta in execution of the decree in O.S. No. 81 of 1930 on the file of that Court, and he

accordingly prayed that the amount realised under that sale may be called for and distributed by the Sub-Court, rateably amongst various decree-

holders. We find from the endorsements on the execution petition No. 52 of 1931 that on the 6th July, the learned Subordinate Judge intimated the

fact of this application to the District Munsif of Sompeta and asked that the money might be sent over to the Sub-Court or be retained in the

District Munsif''s Court pending further orders from the Sub-Court. We later on find a note of intimation from the District Munsif of Sompeta that

the money was retained in his Court pending the orders of the Sub-Court.

The main execution application, was returned for production of the copy of the order of attachment before judgment and the schedule and when

it was re-presented, it was again returned for amendment of certain errors in the schedule. It was finally re-presented on the 31st August, 1931,

when the Subordinate Judge passed an order thereon calling for sale-papers.

In the present proceedings we are concerned only with the sale proceeds realised in the Sompeta District Munsif''s Court by sale of some of the

properties attached before judgment. It would appear that the sale took place on the 23rd June, 1931 and the money was deposited in the District

Munsif''s Court, on the 6th July, 1931. The question is whether, on these facts, the case falls u/s 63 of the CPC or not. Incidentally the learned

Subordinate Judge has discussed the effect of Section 73 of the CPC also, and he was of opinion that the plaintiff''s application for execution must

be deemed to have been admitted only on the 31st August, 1931, when it was re-presented after all the necessary corrections, and it was only

after the order for sale papers was made on that date that the attachment before judgment must be deemed to have become an attachment in

execution, that is, on the 31st August. As the sale proceeds had been paid into the District Munsif''s Court so long ago as the 6th July, it followed,

according to him, that the case would not be covered by Section 63 or Section 73 of the Code.

We are unable to agree with this view. If it were necessary to base our decision on the presentation of the main execution application, we should

have been prepared to hold that the execution application presented on the 3rd July, 1931, was not really defective in law, as it referred, to the

attachment before judgment which had been ordered by that very Court. We may also refer in this connection to K. Abdul Salam Sahib trading

under the name and style of K. Sheikh Meera Saheb and Co. Vs. Batchu Veerabhadra Raju, where it was held that even if there were defects in

the Execution petition the petitioner will be entitled to the benefits of Section 73 if the petition was in substantial compliance with the law. In any

event, under the provisions of Order 21, Rule 17, when the execution petition was re-presented with the necessary amendments, it must be

deemed to have been a valid presentation on the date of the original presentation itself. In the present case it seems to us to be scarcely necessary

to rely upon the formal application for execution, because on the same day E.P. No. 52 of 1931 was also presented and so far as the properties

sold by the Sompeta District Munsif''s Court on the 23rd June are concerned, the only method of execution that the present plaintiff could have

pursued was to ask the Sub-Court to send for the sale proceeds. To that extent E.P. No. 52 of 1931 is itself a proper and sufficient execution

application to satisfy the requirements of law.

It is no doubt true that Section 63 of the CPC requires that the property must be under attachment in execution of decrees of more Courts than

one. But we are unable to agree with the learned Subordinate Judge that the property must be deemed to be under ""attachment in execution"" so far

as the Sub-Court decree was concerned, only when the order was made on the 31st August calling for sale-papers. Order 38, Rule 11 of the

CPC provides that when an attachment before judgment has been made and a decree is subsequently passed in favour of the plaintiff, it shall not

be necessary upon an application for execution of such decree to apply for reattachment of that property. It was at one time held that an

attachment before judgment is so radically different in character from an attachment in execution that some of the provisions in the Code relating to

attachment in execution should not be applied to attachment before judgment. Difficult questions of this kind have arisen under Order 21, Rule 57

and Article 11 of the Limitation Act. It is however unnecessary to deal with the earlier cases in view of the decision of the Full Bench of this Court

in Meyappa Chettiar v. Chidambaram Chettiar I.L.R.(1923) 47 Mad. 483 : 46 M.L.J. 415 (F.B.). The learned Subordinate Judge refers to some

of the observations of the learned Judges in that case and also to the observations in other cases which suggest that it might he possible to treat an

attachment before judgment as becoming an attachment in execution only after some order in execution had been passed by the Court. These

dicta, it seems to us, must be read in the light of the circumstances and the facts of the cases in which they were made. As a question of principle, if

an attachment before judgment can be treated as an attachment for purposes of execution at all, it is difficult to see what necessity there is for an

order of Court. The more reasonable view seems to us to hold that from the time the decree-holder applies for execution, he elects to avail himself

of the attachment before judgment and from that moment the attachment before judgment becomes an attachment available for purposes of

execution. Far from the observations in the Full Bench case being opposed to this view, we find that on a careful examination the observations of

the three learned Judges, who constituted the majority in the Full Bench case, support the above view. For instance, at page 501 Courts Trotter, J.

(as he then was) observes:

The turning point comes in my opinion when the decree-holder by filing an execution petition has shown that he means to execute his decree; and I

am myself unable to escape from what seems to me the logical conclusion that, when he has elected to proceed in execution, an attachment which

he has obtained and on which he must necessarily base his petition and demand for sale, becomes automatically an attachment in execution. (See

also page 502).

Ramesam, J.

Similarly says at page 505:

In my opinion, the effect of Order 38, Rule 11, is, though it does not say so in so many words, that the attachment before judgment becomes an

attachment in execution when it is definitely sought to be made available for execution.

In the judgment of Waller, J., also, the reference to Order 21, Rule 17, at page 522 indicates that the learned Judge was thinking of the date of

the presentation of the petition; and this is confirmed by his reference at page 523 to the opinion of Wallis, C.J., in an earlier case and by the

following sentence at page 524;-

When once it has been found that for one purpose, an application to execute converts an attachment before judgment into an attachment in

execution, the conclusion is to my mind, inevitable that the conversion operates for all purposes.

We do not therefore think that there is anything in principle or authority to compel us to hold that a person who has obtained an attachment

before judgment cannot avail himself of Section 63 of the Code of Civil Precedure till some order has been passed by the Court upon his

application for execution.

On behalf of the respondent, Mr. Jagannadha Das raised a question as to the expediency of our interfering in revision in the circumstances of

this case. He did not maintain that this Court had no jurisdiction to interfere in revision; and in the face of the principle recognised by the Full Bench

in Sundaram alias Mytheenbibi Vs. Mamsa Mavuthar, Sheikkasim Mavuthar, it could hardly be maintained that when the lower Court refuses to

exercise the powers vested in it by law and holds on an erroneous view of law that a case does not fulfil the requirements of the provisions of the

Code, this Court could not interfere in revision. His point was that as the person to whom rateable distribution is refused has his remedy by way of

separate suit this Court should not interfere in revision. He also pointed out that as the monies realised in the Sompeta District Munsif''s Court have

since been distributed to various decree-holders difficult questions may arise as to the way in which they can be got back. The answer to the first

part of his argument is that the present case falls u/s 63 and not u/s 73 of the Code of Civil Procedure. Further, where we are satisfied that the

lower Court has proceeded on a clear misapprehension of that section we do not think we will be justified in driving the petitioner to a separate

suit, merely on the ground that that remedy may also be open to him. As to the effectiveness of our order and the extent of relief that the petitioner

could get in the present proceedings on remand, we do not wish to say anything at this stage. That will depend upon various facts and events that

might have happened meanwhile and it will be for the lower Court to give the petitioner whatever relief may be practically possible, and proper in

the circumstances; all questions bearing upon the reliefs which the petitioner could get on remand are left open.

The order of the lower Court is set aside and the case is sent back for disposal on the merits after considering the other points raised in the

counter petition. The costs of this revision petition will abide and follow the result.