AI Structured Summary
Not yet generated for this judgment
Judgment
Subramania Iyer, J.—In this appeal by the first Defendant the only question is whether the attachment levied by him in execution of the decree in O.S. 77 of 1106 subsisted after 4-3-1111 and the Court auction sale dated 19-3-1120 is in enforcement of that attachment. If the answer is ''Yes'' the Appellant succeeds. Otherwise, he fails.
Three items of properties are in question. Plaintiff who is a son of the 5th Defendant claimed all these three items on the basis of three documents, Exs. A, B and C. Ex. A dated 1-3-1114 is a gift item No. 1 given by its owner, the 5th Defendant, who was the judgment-debtor in O.S. 77 of 1106. The 5th Defendant sold items 2 and 3 to his mother on 6-6-1109 under Ex. B. The mother in her turn made an oral gift of those properties to the Plaintiff who is her grandson.
After obtaining that gift the Plaintiff got his title confirmed by taking a release from his father, Ex. C, on 16-12-1114. The 5th Defendant, as already stated, was a judgment-debtor in O.S. 77 of 1106 under which he had to pay the illom of the first Defendant Appellant over Rs. 7,000. EX. D, the execution diary in that case, shows the details of various steps taken in execution of that decree. The decree was dated 9-6-1106. There were execution applications in the years 1107, 1108 and 1109, Exs. E, K and G.
The three items in question were admittedly under attachment and on 6-6-1109 when the 5th Defendant assigned items 2 and 3 to his mother under Ex. B the attachment was subsisting on all the items. The argument of the Plaintiff which was accepted by the Court below was that on account of a dismissal of a subsequent execution petition, Ex. H. dated 18-2-1111, for the default of the decree-holder the attachment ceased on 4-3-1111, that though there were execution petitions in 1113 (Ex. J), and 1117, there had been no fresh attachment and, therefore, the Court auction sale that took place on 19-3-1120 under which the first Defendant Appellant claims was not in enforcement of any attachment with the result that the intervening alienations dated 6-6-1109 and 1-3-1114, Exts. A and B respectively, would be good and operative as they are free from infirmity of attachment.
The point for consideration, therefore, is whether there has been a judicial disposal of the execution petition Ex. H on account of the default of the decree-holder. Ex. H was presented, as already stated, on 18-2-1111. The order thereon for notice under Order 21, Rule 20 of the Travancore CPC was passed on 22-2-1111. The intervening days were ''pooja" holidays. On 22-2-1111 the case was posted to 29-2-1111 for the deposit of batta for notice by the decree-holder. No batta was deposited and on 4-3-1111 the form was struck off. Order 21, Rule 55 of the Travancore CPC as it then stood provided that:
Where any property has been attached in execution of a decree but by reason of the decree-holder''s default the Court is unable to proceed further with the application for execution, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application, the attachment shall cease.
This order contemplates the dismissal of the form forthwith or on any subsequent day to which it is posted. There was no immediate disposal in this case nor was the form posted to some later date for disposal. The month of Kanni had 31 days in that year and the striking off of the form was only on 4-3-1111. Though Rule 55 does not contemplate the intervention of any time between the default of the decree-holder and the dismissal of his execution form on that account Courts have considered the lapse of a small time as reasonable.
The maximum delay that had been recognised as reasonable to bring the order within Rule 55 is four days. See Krishnan Nambi Kesava Sarma v. A. Sainuba Kunju 1954 Ker LT 432 (A). We do not consider that an order striking off an execution form six days after the default of the decree-holder and not even in the week in which the default was committed can be considered to have been passed with reasonable promptness within the meaning of 1948 Trav LR 237 (FB) (B)'' which has discussed this matter. The 29th of Kanni 1111 was a Wednesday and the striking off was on 4-3-1111 on the next Tuesday.
It is not possible to lay down any hard and fast rule but in the circumstances of this case we consider that the order striking off the form has not been reasonably prompt so as to render it a judicial disposal. The order striking off, therefore, in this case is not a judicial order dismissing the execution petition but amounts only to a relegation of the file to the records. The introduction of a reasonable time within which an order dismissing a form for default should be made is Judge-made law engrafted on the section which has been already read.
The lower Courts should see that the rule is strictly complied with by disposing of matters on the very day on which default occurs and avoid waste of judicial time subsequently in considering as to whether the disposal has been within a reasonable time or not, a matter which is necessarily bound to vary with the length of the Chancellor''s foot, as it is said.
It may be mentioned that in Ex. J, the next execution petition dated 9-3-1113 the decree-holder regards the attachment on these items as still subsisting, and he applies for fresh attachment of other items of properties. As in our view the attachment did not cease on 4-3-1111 the order of the Court below cannot be supported. It is set aside and this appeal allowed with costs, here and in the Court below.