Sabapathi Pillai (died) and Others vs Mohammad Ilais Sait and Another

Satyanarayana Rao, J.—The plaintiff is the appellant. He instituted the suit out of which this second appeal arises to set aside the summary

order passed on the 24th June, 1942, in E.A. No. 244 of 1942 in E.P. No. 707 of 1941 on the file of the District Munsiff''s Court of Tiruppur.

The claim order was passed under the following circumstances. The first defendant in the present suit executed a promissory note on the 25th

April, 1935 for a sum of Rs. 600 in favour of the plaintiff. As the amount due under the promissory note was not paid the plaintiff instituted O.S.

No. 322 of1937 on the file of the District Munsiff''s Court of Coimbatore. He also applied in I.A. No. 646 of 1937 for an attachment before

judgment of certain Immovable properties of the first defendant and obtained an interim attachment order. On the 28th October, 1937, the suit

was decreed ex parte and the interim attachment before judgment was made absolute. On the 4th June, 1940, the decree-holder filed E.P. No.

2203 of 1940 in the District Munsiff''s Court of Coimbatore for sale of the properties, which were attached before judgment in I.A. No. 646 of

1937.In this execution petition presumably the judgment-debtor was served and after several adjournments on the 6th January, 1941, the Court

passed an order directing proclamation and sale of the property on the 24th March,1941.The further hearing of the application was also adjourned

on the same day to 31st March, 1941.On the 6th January, 1941, a note was put up by the office pointing out that it was then discovered that the

properties which were sought to be sold were not within the jurisdiction of that Court but were outside it, i.e. within the jurisdiction of the District

Munsiff''s Court of Tiruppur. The suggestion of the clerk who put up the note was that the hearing of the execution application should be advanced

and that the same be dismissed and the decree-holder should be left to take other effective steps. No notice of this was given to the decree-holder

and the District Munsiff passed an order on the 6th January, 1941, in the following terms:

Advanced and dismissed. Attachment to subsist for six months.

When the decree-holder went to the Court about the 24th March, he was told that the execution petition was dismissed earlier. He applied for a

copy of the order and curiously the copy that was granted to him omitted the limit of six months It stated "" Advanced and dismissed. Attachment to

subsist."" After this the decree-holder had the decree transmitted for execution to the District Munsiff''s Court, Tiruppur and on the 9th July, 1941,

filed E.P. No. 707 of 1941 for the sale of the property. The present second defendant then intervened with a claim petition alleging that the

property was purchased from the first defendant by one Kasim Sahib on 3rd June, 1940, and that from the said Kasim Sahib she had purchased

the same on 24th October, 1940, and that as by the lapse of the period of six months the attachment had ceased, her title became perfected. That

claim was allowed by the District Munsiff on the 24th June, 1942. The plaintiff therefore instituted the present suit to set aside the claim order.

The contention of the plaintiff in the Courts below was that notwithstanding-the order of 6th January, 1941, of the District Munsiff of

Coimbatore, the attachment of the suit property effected before judgment in the suit subsisted'' and that as the second defendant and her vendor

obtained transfer of the property at a time when the attachment was subsisting the sale in their favour could not prevail over the attachment. Both

the Courts rejected the contention of the plaintiff and dismissed the suit. Hence this second appeal.

The appellant argues that as the order of 6th January, 1941, was passed without notice to him it is a nullity and that in any event in order to

invoke the power of terminating the attachment under Order 21, Rule 57 of the Civil Procedure Code, the execution application on which the

order was passed must have been made to a Court having jurisdiction to grant the relief of sale of the property prayed for in the petition and that as

admittedly the Coimbatore District Munsiff''s Court had no jurisdiction to sell the property the order on the execution petition restricting the period

of attachment for six months was a nullity. The question is whether these contentions are well founded. It has been found by the appellate Judge in

more than one place that the order was passed on the 6th January without notice to the decree-holder. The decree-holder had no knowledge that

the hearing of the execution application was advanced to that date. The appellant relies upon the decision of Venkatasubba Rao, J., in Krishna

Iyengar v. Mohidin Sahib Rowther (1934) 40 L.W. 263. in support of his contention that the order passed without notice to the decree-holder is

not valid. In that case an execution petition was taken up for hearing on the 13th December 1924 and on that date it was adjourned to 23rd

December, 1924, for filing sale papers. The Court instead of taking up the the petition on the 23rd to which the petition stood posted disposed of

it on the 16th January, 1925, without notice to the decree-holder and passed an order dismissing the petition on the ground that sale papers were

not filed. The question raised before the learned Judge was that the effect of this dismissal was to terminate the attachment. It was pointed out by

the learned Judge that the order dismissing the petition could not have been passed on that date on the ground that the sale papers were not filed

without notice to the decree-holder and had notice been given to the decree-holder it would have been open to him to show that the sale papers

could not be obtained for reasons beyond his control and that there was no negligence on his part and he could have asked the Court to adjourn

the petition to a future date instead of dismissing it. The termination of the attachment as a consequence of the dismissal of the petition as pointed

out by the learned Judge, was in the nature of a penalty and a dismissal without giving an opportunity to the decree-holder to represent the facts

and behind his back was not a dismissal in the eye of the law and therefore did not put an end to the attachment. That decision was under Order

21, Rule 57 of the CPC before the amendment of that rule, was made by this Court. Before the amendment the language of the rule was,

When any property has been attached in execution of a decree but by reason of 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.

There were only two courses open under the rule, viz., either to adjourn the application or to dismiss it. If it was dismissed it automatically

terminated the attachment. The rule was altered in 1936 by this Court and the amended rule reads as follows:

Where any property has been attached in execution of a decree and the Court hearing the execution application either dismisses it or adjourns the

proceedings to a future date, it shall state whether the attachment continues or ceases; 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.

Under this rule even in a case where a petition was not adjourned but was dismissed, it is open to the Court to continue the attachment or

terminate it. But in either case it is the duty of the Court to state whether the attachment continues or ceases. If the application is dismissed by

reason of the default of the decree-holder the order should state that the attachment has ceased. I do not think that the basis of the decision in

Krishna Iyengar v. Mohideen Sahib Rowther (1934) 40 L.W. 263 is altered by reason of the amendment. The reasoning equally applies whether

we consider the language of the unamended rule or of the rule as amended. In my opinion therefore the contention that the order of the 6th

January, 1941, passed behind the back of the decree-holder is a nullity should be accepted.

Even otherwise I am of opinion that the order in this case is invalid on the ground that the Court had no jurisdiction to pass the order. It has been

held in Meyyappa Chettiar v. Chidambaram Chetti (1923) 46 M.L.J. 415 : ILR Mad. 483 that the expression "" property attached in execution of

a decree "" in Order 21, Rule 57 applied also to property attached before judgment, provided that the decree in the suit was followed by an

execution application for the purpose of bringing the attached property to sale. When once there is a decree in the suit and an application for

bringing the property to sale has been made the procedure prescribed under Order 21, Rule 57 of the CPC becomes applicable and the

attachment before judgment thereafter is treated as an attachment in execution. In order therefore to have this effect it is necessary that there should

be an execution petition for sale of the property to a Court competent to sell the property. The very language of Order 21, Rule 57 of the CPC

assumes that there was an application for execution of the decree to the Court competent to execute it and that for some reason or other, other

than want of jurisdiction, the Court was unable to proceed with the execution application. The reason may be the default of the decree-holder or a

reason which is analogous to that but in either case it assumes that there was an application before a Court competent to entertain it but was unable

to proceed with the execution of the decree for want of proper steps. If the Court had no jurisdiction at all to entertain the application it cannot be

said that it is a case to which Order 21, Rule 57 of the CPC applies. In this case therefore when the application was made to the Coimbatore

District Munsiff Court on which the order of 6th January was made it was to a Court admittedly unable to proceed with the sale of the property as

it had no jurisdiction to sell it. In these circumstances I am of opinion that the order on the execution application filed in the Coimbatore Court

which admittedly had no jurisdiction to sell the property would not bring about the consequences contemplated under Order 21, Rule 57 of the

Civil Procedure Code. The Court ought to have merely disposed of the application on the ground that it had no jurisdiction to entertain it and no

question of either continuing or ceasing the attachment or limiting the continuance of the attachment of the property would then arise. The order

therefore was one which was passed by a Court which had no jurisdiction to entertain the application. In these circumstances the order of 6th

January, 1941, is a nullity with the result that the attachment continued in force notwithstanding the expiry of the period of six months from the 6th

January, 1941.

Lastly it was also urged on behalf of the appellant that in any event he should not be made to suffer as the Court granted him a copy which did

not disclose the fact that the attachment was continued only for a period of six months. Had he known that the attachment was continued only for a

period of six months he would have taken steps early enough to file the execution petition in the Tiruppur District Munsiff''s Court. He therefore

says that by reason of the act of Court he should not be made to suffer. I think there is considerable force in this contention also urged on behalf of

the appellant but it is unnecessary for me to rest my decision in this case on that point.

The result is that the attachment of the properties continued in force and the sale in favour of Kasim Sahib by the first defendant and the

subsequent sale by Kasim Sahib to the second defendant are of no avail against the attachment effected by the plaintiff. The second appeal is

allowed, the decrees of the Courts below are set aside and the suit is decreed as prayed for with costs throughout.

Leave to appeal is refused.