P. Bhaskar vs L. Madhavikutty Amma and Others

Bhaskaran Nambiar, J.—The husband against whom a decree was passed directing him to pay compensation amount of Rs. 5,000 at the time of divorce and also maintenance at the rate of Rs. 100 to the first child and Rs. 75 to his other two children per month, is the revision Petitioner. Several attempts have been made to execute the decree and reailse the amount due. The attempts have been successfully resisted by the Petitioner on several occasions. Originally when execution was taken, he pleaded that he had no means to pay. That defence was overruled and he was arrested. Subsequently, an application was filed for attachment of his properties, when the wife apprehended that the husband was intending to alienate his properties. Attachment was ordered. It is, however, unnecessary to refer to the further steps taken in that execution petition, for, there was another execution petition, which was filed in the meanwhile. That execution petition was dismissed on 23rd February 1980 "subject to the subsistence of the attachment". In the next execution petition, out of which this revision arises, E.P. No. 89 of 1984, the husband contended that there was no attachment subsisting from 23rd February 1980 and he sold the properties to strangers thereafter and those properties could not be proceeded against for the realisation of the decretal amount. The husband relied on Order 21, Rule 57 to contend that when the execution petition is dismissed without any direction regarding, the continuance of attachment, the attachment did not continue and there was no bar to alienate, and the sale effected by him was valid and those properties could not be proceeded against in this execution petition. The court below held that the order, dated 23rd February 1980 did not direct the continuance of the attachment; but even then there is no bar to the continuance of the execution petition and directed the property to be sold in execution. It is against this order that this revision is filed.

I have perused the original records. The order, dated 23rd February 1980 specifically directs the attachment to continue because the E.P. was dismissed "subject to the subsistence of the attachment". The court below was therefore wrong in assuming that the attachment did not continue after 23rd February 1980.

But, the counsel submits that on 23rd February 1980 when the E.P. was dismissed and an order was made to continue the attachment, the period during which the attachment was to be kept alive was not indicated and therefore according to him, under Sub-rule (2) of Rule 57, "if the Court omits to give such direction, the attachment shall be deemed to have ceased". Order 21, Rule 57 reads thus:

Determination of attachment.- (1) Where any property has been attached in execution of a decree and the Court, for any reason, passes an order dismissing the application for the execution of the decree, the court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease.

(2) If the Court omits to give such direction, the attachment shall be deemed to have ceased.

There was some confusion in some quarters as to whether an attachment ordered by a court remained in force when an execution petition was dismissed or struck off or removed from file without any specific order stating that the attachment shall either continue or cease. It is to obviate this difficulty that Order 21, Rule 57 provides that when an execution petition is dismissed for any reason, whatsoever, the execution court shall direct whether the attachment shall continue or cease. If it directs the attachment to continue it shall also indicate the period up to which such attachment shall continue or the date on which the attachment shall case.

The short question for consideration is whether the omission to indicate the period up to which the attachment should continue or the date when such attachment shall cease will statutorily lift the attachment, by the operation of Sub-clause (2) of Order 21, Rule 57. No decision has been cited on this aspect. Considering the object and purpose of Order 21, Rule 57, namely, not to leave the question of existence or continuance of the attachment in doubt, it is clear that the court is bound to direct under Clause (1) whether the attachment shall continue or cease. If no such direction is issued, Sub-clause (2) operates and the attachment shall be deemed to have ceased. Thus by the combined operation of Clauses (1) and (2) of Rule 57, there is no further room for any assumption regarding the continuance or otherwise of the attachment. The effect of Clause (2) is not to efface an order issued under Clause (1) but to declare in positive terms the effect of an omission to issue an order under that clause. When attachment is ordered under Clause (1), non-indication of the period of attachment thus cannot nullify the attachment and Clause (2) cannot be so interpreted as to invalidate the attachment itself. Moreover, the omission to indicate the period up to which the attachment continues or the date on which such attachment ceases, is a curable defect. The right to cure the defect cannot be denied to the court, nor can the right be incapable of exercise by the attachment terminating under Clause (2). Clause (2) is not intended to achieve this incongruous result. The statutory fiction under Clause (2) can thus operate only in a limited field and the expression ''direction'' in that provision can relate only to the direction regarding the continuance or otherwise of the attachment and not to the duration of the attachment to be indicated under Clause (1). Normally, the court is expected, when ordering attachment, to fix the period during which the attachment is to continue. If, however, the court directs attachment, but fails to mention the period during which it is to continue, the attachment is not invalidated or terminated by the operation of Clause (2) of Rule 57.

In this view, the earlier order, dated 23rd February 1980 directed the attachment to continue and as the attachment subsists, the executing court was right in proceeding with the execution for the sale of the attached properties.

The C.R.P. is dismissed. No costs.

*A reproduction from ILR (Kerala Series).