Subba Chariar vs Muthuveeran Pillai and Others

The District Judge of Coimbatore has held that the application of the appellant, decree-holder, dated 12-7-09 praying for an order directing sale

of the properties set out in the schedule appended to the application which along with some of the items were attached in pursuance of a previous

petition No. 2 of 1904 is barred by limitation because the application was made more than 3 years after an order dated 26-7-04 by which the

petition 2 of 1904 was dismissed for non-prosecution inasmuch as that petition not only contained a prayer for attachment which was in fact

granted but also a prayer for sale and the appellant failed to produce a draft proclamation. It appears however that on 30-9-07 some of the items

attached under E. P. 2 of 1904 were brought to sale on an application made sometime in 1908 on the footing that the attachment untill subsisted in

spite of the order of dismissal passed on 26-7-04. The present application is within 3 years of the application of 1908. The learned Judge thinks

that the order allowing the application of 1908 is wrong; in his opinion it ought to have been dismissed in as much as the attachment according to

him had ceased to operate on 26-7-04 and he would not therefore give the application of 1908 or the order thereon any effect. We are unable to

uphold this view. In the first place the judgment-debtor is estopped from contending that the attachment does not subsist. His learned Vakil argues

that the question whether the attachment made in 1904 continued or not in spite of the order of 26-7-04 is one of law and therefore the order of

1908 allowing sale of some of the properties under attachment being a wrong decision on a question of law cannot preclude him from showing that

the attachment came to an end by the order of 26-7-04. But the question whether an order dismissing an application for execution put an end fco

the attachment is one of intention as pointed out in Govinda Chandra Pal v. Dwarkanath Pal ILR (1906) Cal 666 and has to be determined upon

the circumstances of each case. No doubt Order XXI Rule 57 of the present Code lays down that where any property has been attached but by

reason of the decree-holder''s default, the Court is unable to proceed further with the application for execution and dismisses the application, the

attachment shall cease on such dismissal. But this is a new provision which found no place in the Code of 1882 and the effect of the decisions

under old law which we do not think it is necessary to review on this occasion supports the proposition laid down in the Calcutta case. None of the

cases cited by Mr. Rangachari such as R.M.P.L. Palaniappa Chettiar and Another Vs. Raja Visvanatha Vijaya Kumar Bangaru Tirumalai Savari

Naidoo and Another, Manga-lathammal v. Narayanasami Aiyer ILR (1907) M. 461 which lay down that an erroneous decision on a question of

law has not the effect of res judicata when the subsequent proceeding relates to a different subject-matter have therefore any application to the

present case.

On the other hand this case is covered by Ram Kirpal v. Rup Kuari ILR (1883) A. 269, where it was held that a question as to whether upon a

proper construction of a decree mesne profits could be recovered under it was concluded by previous orders in execution and by Venkata-

narasimha Naidu v. Pappammah ILR (1898) M. 54 and Subbarama Iyer v. Nagammal ILR (1901) Mad 683 where the principle of res judicata

was applied to similar questions relating to the construction of decrees.

The learned Vakil for the Respondent next argues that even if the attachment be held to be subsisting the application is barred under Article 178

which allows three years for applications for which no period of limitation is provided elsewhere counting from the date on which the right to apply

accrues. This he says is the date of attachment.

We may take it as well established that an application like this which is intended to revive and carry through a pending execution is not covered

by Article 179 as it is not an application to initiate a new execution; see Qamaruddin Ahmed v. Jawahir Lal ILR (1905) A. 334 and Suppa

Beddiar v. Aundai Ammal ILR (1904) Mad 50 It does not follow however that under Article 178 the application will be barred because it was

made three years after the date of attachment. This question which is not free from difficulty was fully considered in a recent decision of this Court

by Miller and Munro JJ. in Chalavadi Kotiah v. Poloori Alamelamma ILR (1907) M. 71 and we agree with them that where an application is made

to continue proceedings in a pending execution the right to apply accrues from day to day and will not be barred until 3 years have elapsed after

the proceedings have ceased to be pending. This proposition is deducible as pointed out in that case from the course of decisions on the subjeet

(see Venkatappiah v. Jagan-nadha Rao (1901) 12 M.L.J. 25, Chowdhry Paroosh Ram Das v. KaliPuddo Banerjee ILR (1889) C. 53 Kedarnath

Dutt v. Harm Chand Dutt ILR (1882) Cal. 420 and Qamar Uddin Ahmed v. Jawahir Lal ILR (1905) A. 334.

The appeal must therefore be allowed and the District Judge will be directed to dispose of the execution petition 15 of 1909 according to law.

The respondents must pay the costs of this Appeal.