State Bank of Travancore vs K.P. Radhakrishnan and Another

P.K. Balasubramanyan, J.—The decree holder is the petitioner in this revision u/s 115 of the Code of Civil Procedure, 1908. The decree holder, State Bank of Tranvancore, obtained a decree on October 18, 1982, for recovery of a sum of Rs. 1,67,229.59 against the first defendant private limited company and its directors by sale of the properties and also proceeding against the directors. On December 22, 1982, the decree holder filed an execution petition which was numbered as E.P. No. 6 of 1983. There were two prayers in that petition, one to appoint a receiver for A schedule immovable properties and B schedule movables belonging to the first defendant-company and for sale of those properties. The court appointed a receiver who sold the movables. The immovable property was also sold. A partial satisfaction of the decree was recorded. While that execution petition was pending, the decree holder bank filed E. A. No. 108 of 1983, to attach the personal properties of defendants Nos. 6 and 8 on the ground that the properties mortgaged were not sufficient to satisfy the decree debt. On April 12, 1983, an order of attachment was made by the executing court and on June 7, 1983, attachment was effected. On September 14, 1983, attachment was made absolute and E.A. No. 108 of 1983 was closed. It was on October 1, 1985, that a modified satisfaction order was made by the executing court which also directed that the attachment made in E. A. No. 108 of 1983, will continue, it did not indicate the period for which the said attachment was to continue.

On April 3, 1987, the decree holder filed E.P. No. 120 of 1987, praying for recovery of the balance amount due under the decree by sale of the properties attached in E.A. No. 108 of 1983. On receipt of notice of the said execution petition judgment-debtors Nos. 6 to 8 whose properties were sought to be proceeded against filed petitions contending that the decree was not in conformity with Order 34, Rule 4 of the CPC and hence the decree was in executable, that there was no subsisting attachment over the properties and that since there was no prayer for attachment of the properties in the execution petition, the present execution petition is not maintainable.

The executing court found that the decree was valid and regular and could be executed. This finding was not challenged before us on behalf of the judgment-debtors at the time of hearing. Obviously, therefore, the first objection of the judgment-debtors that the decree was not executable does not have any merit.

The executing court took the view that since no period up to which the attachment was to continue was indicated in the order directing the attachment to continue while passing the order on October 1, 1985, it must be held that under Order 21, Rule 57 of the Code of Civil Procedure, there was no subsisting attachment and consequently the prayer for recovery of amounts by sale of the properties without a prayer for attachment in that behalf was not maintainable. The executing court proceeded to dismiss the execution petition presumably even without giving the decree holder an opportunity to amend the execution petition in view of its conclusion on the question of the subsistence of the attachment. The executing court relied on Order 21, Rule 57 of the CPC to come to the conclusion that there was no subsisting attachment. The order of the executing court dismissing the execution petition is challenged in this revision by the decree holder.

It was argued on behalf of the decree holder that in view of the decision of this court in Bhaskar v. Madhavikutty Amma [1989] 2 KLT 483 the order of the executing court was unsustainable and the same had only to be set aside. At that stage, counsel for the judgment-debtors sought to question the correctness of that decision rendered by a learned single judge. It is in view of this that the civil revision petition was referred to a Division Bench for being heard.

In Bhaskar v. Madhavikutty Amma [1989] 2 KLT 483 the situation was more or less identical. There also the court had directed the attachment to continue but had not indicated the period up to which the said attachment was to continue or the date on which the attachment was to cease. In dealing with a contention that there was no subsisting attachment since the court while directing the attachment to continue did not indicate the period up to which the attachment was to continue and consequently the attachment must be deemed to have ceased in terms of Order 21, Rule 57(2) of the Code of Civil Procedure, V. Bhaskaran Nambiar J. held as follows (page 485) :

"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".

The argument advanced on behalf of the judgment-debtors is that while taking that view our brother had not kept in mind the object and reasons for the enactment of the amendment brought to Rule 57 of Order 21 of the Code, by the Amendment Act of 1976. The view of the committee that it should be made obligatory on the part of the court to indicate the period up to which the attachment will continue or the date on which such attachment would cease and an omission on the part of the court to indicate the period should result in the attachment ceasing to exist was relied on. But on a reading of Sub-rule (2) of Rule 57 of Order 21, we are of the view that what brings about a cessation of the attachment is not the omission to indicate the period up to which the attachment was to continue but the failure to give a direction that the attachment shall continue. While dismissing the execution petition the intention of the court was to be made clear is what is discernible from Order 21, Rule 57 of the Code. The court must either direct that the attachment shall continue or direct that it shall cease. What is referred to by Sub-rule (2) of Rule 57 of Order 21 of the Code is that direction and once a direction is given for the attachment to continue, it would not come to an end by operation of Sub-rule (2) of Rule 57 of Order 21 of the Code merely on the ground that the court did not indicate the particular period during which the attachment should continue. After all the judgment-debtors should also have requested the executing court while it directed the attachment to continue, to fix a time limit for its continuance and a mere failure to indicate the period as such, in our view, would not bring about the cessation of the attachment under Order 21, Rule 57(2) of the Code. According to us the reference to the objects and reasons cannot extend the scope of Sub-rule (2) of Rule 57 of Order 21 of the Code. Sub-rule (1) of Rule 57 makes a distinction between a direction as to whether the attachment shall continue or cease and the giving of an indication of the period up to which it shall continue or the date on which it shall cease. Sub-rule (2) of Rule 57 of Order 21 only refers to the direction and not to the indication. In view of this, we are in respectful agreement with the view expressed by V. Bhaskaran Nambiar J. in Bhaskar v. Madhavikutty Amma (1989] 2 KLT 483

There were arguments before us regarding the difference in wording between Order 21, Rule 57 of the CPC that was in force earlier and the rule in its amended form. In the view we have taken as above, we do not think it necessary to go into that aspect. On a plain reading of Order 21, Rule 57, we are of the view that what is mandatory for the attachment to continue is the direction that it should continue and not the indication of a period and the failure on the part of the court either inadvertently or otherwise to indicate the period would not bring about an automatic cessation of attachment under Order 21, Rule 57(2) of the Code.

Learned counsel for the decree holder contended that in the present case the attachment prayed for in E.A. No. 108 of 1983 was not in furtherance of the prayer in E.P. No. 6 of 1983, which was dismissed and, therefore, the attachment was made absolute with a view to enable the decree holder to proceed against the personal properties of the directors and in such a situation, Order 21, Rule 57 of the CPC has no application. We see some force in this contention. But in the view we have taken as above, we do not think it necessary to finally pronounce on this question.

In view of our conclusion that the attachment ordered on April 12, 1983, in E.A. No. 108 of 1983, and effected on June 7, 1983, subsists, the dismissal of the execution petition by the court below on the ground that there was no prayer for attachment of the properties cannot be sustained. We, therefore, set aside the order of the executing court and remand E.P. No. 120 of 1987, to that court for proceeding with the execution by sale of the properties attached in E.A. No. 108 of 1983, and in the light of the other prayers made in the execution petition. In the circumstances of the case, we make no order as to costs.

The parties are directed to appear in the executing court on June 3, 1996.