Sebastian Joseph and Another vs Cherian Varghese and others

L. Manoharan, J.—Both the Civil Revision petitions arise from the orders in the execution of the decree in O. S. 646 of 1989. Revision petitioner in C. R. P. 2002 of 1993 filed E. A. 176 of 1992 under Order 21 Rule 58 CPC and the revision petitioner in C. R. P. 2006 of 1993 filed E A. 179 of 1992 under Order 21 Rule 58 CPC. The said E.As. were dismissed by orders dated 8-7-1993. The said orders are under challenge in these CRPs. These CRPs. are disposed of by this common order as common question arise for determination in both the Civil Revision petitions.

First respondent Instituted O. S. 646 of 1989 before the Principal Subordinate Judge''s Court, Kottayam against respondents 2 and 3 for realisation of the money. Pending suit, as per an order under Order 38 Rule 5 CPC the property of the revision petitioner in C. R. P. 2002 of 1993 was attached. And the property of the revision petitioner In C. R. P. 2006 of 1993 also was attached before judgment under Order 38 Rule 5CPC. The suit was later decreed. On learning that the execution is being taken out against, their properties, petitioners filed petitions under Order 21 Rule 58 CPC. Both of them claimed right over the property as per sale deeds executed by the third respondent. They maintained that their properties are not liable to be proceeded against in execution of the decree in the said suit. Petitioners would allege that though the claim petitions came up on several occasions, the first respondent did not file any objection. Later, they allege that the E. P. was dismissed as not pressed. On the date of dismissal of the E. P. itself the claim petitions filed by the petitioners were Also dismissed. The impugned order reads : "E. P. dismissed. So B. A. also dismissed without prejudice, to parties'' right if any".

It was contended by the Learned Counsel for the revision petitioners that, it was illegal for the court to dismiss the claim petitions merely because the E. P. was dismissed. According to him, the attachment being one under Order 38 Rule 5 CPC,'' the same will not cease to exist when the E P. is dismissed, He sought to make a distinction between an attachment in execution and an attachment before judgment. In short his contention is with respect to an attachment under Order 38 Rule 5 CPC, Order 21 Rule 57 CPC has no application. Therefore, according to the Learned Counsel the attachment would continue in spite of the dismissal of the E P, consequently it was obligatory for the lower court to adjudicate the claim, that having not done the Impugned order is liable to be set aside.

Reliance was made by the Learned Counsel for the revision petitioners on the decision in Arumagbom Ammal v. Nayanar Panicker 1962 KLT 264-FB in support of the aforesaid contention. Learned Counsel for the respondents pointed out that as per Order 36 Rule 11A, Order 21 Rule57CPC will apply to an attachment under Order 38 Rule 5 CPC also.

In the decision in Arumughom Ammal''s case) 1962 KLT 264-FB It is held that Order 38, Rule 11 does not have the effect of transforming, an attachment before judgment Into an attachment in execution and deem it as such for the purpose of Order 21 Rule 57. Consequently it was held that the dismissal of execution application for default does not put an end to attachment before judgment.

Order 21 Rule 57 CPC enjoins that when the execution court passes an order dismissing the execution petition 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. Sub-rule (2) states that if the court omits to give such direction, the attachment shall be deemed to have ceased. There is no case to the effect, while dismissing the E.P. the court has made any direction as to the attachment. Therefore as per sub-rule (2) of Rule 57 of Order 21 CPC the attachment should cease.

7 Now the moot question is whether the Order 21 Rule 57 CPC will apply in the case of attachment before judgment. As noticed Arumughom Animal''s case 1962 KLT 264 - FB states that the dismissal of the E- P. for default will not put to an end to attachment before judgment. After the decision of Arumughom Animals case (1962 KLT 264-FB) Rule 11A was incorporated in Order 38. Rule 11A reads;

11A. provisions applicable to attachment.- (1),The provisions of this Code applicable to an attachment made in execution of a decree shall, so far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of rule 11.

(2) An attachment made before judgment in a suit which la dismissed for default shall not become revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored.

The Rule was inserted by Section 83 of CPC Amendment Act 104 of 1976. The said Rule 11A is intended to clarify the position as to whether the provision of Order 21 Rule 57 CPC would apply to an attachment made before judgment. It is necessary in this connection to. note that there was conflict among the High Courts on the question whether Order 21 Rule 57 would apply to an attachment under Order 38 Rule 5CPC also. Of course the Kerala High Court took the view in Arumngaem Ammal''s case (1962 KLT 264 - FB) that the dismissal of the execution application for default will not put to an end to attachment before judgment. It is in that back ground Rule 11A was inserted in Order 38by the CPC Amendment Act. Sub Rule (1) of Rule UA clearly states that the provisions of the Code applicable to an attachment made in execution of a decree shall apply to an attachment made before judgment which continues by virtue of provisions of Rule 11. Thus the provisions inclusive of order 21 Rule 57 CPC concerning an attachment in execution will apply to an attachment before judgment also. The position being as indicated above, when an E. P. is dismissed, unless the court makes a direction with respect to the attachment as enjoined in sub-rule (1) of Order 21 Rule 57 CPC the attachment will cease to exist. As noticed, there is no case that the execution court made any direction under Order 21 Rule 57 CPC when the E. P. was dismissed. Thus as per sub-rule (2) of Order 21 Rule 57 CPC the attachment has ceased to exist. on the dismissal of the E. P. When the attachment ceased to exist the claim petitions would become infructuous Consequently the dismissal of the claim petitions in such circumstance could only be a dismissal as a result of the ceasing of the attachment Further'' the order also states that the dismissal was without prejudice to the parties'' right, if any. In view of the said aspect, the revision petitions are liable to be dismissed which accordingly are dismissed.

Issue photo copy of the order on usual terms.