Syed Muhammad Amirul Hasan vs Musammat Wazir Bibi and Others

Dawson Miller C.J.

This appeal raises the question of the rights of rival claimants to take out execution of a decree. One claims to execute the decree by reason of an attachment obtained by him in execution proceedings in another suit and the other claims to execute the decree as purchaser from the original decree-holders. The facts which are necessary to be stated in order to appreciate the points which have been raised and argued are as follows: On the 2nd April 1910 Asfandiar Khan and Janoo Bibi, his mother, obtained a decree against Wazir Bibi and others in a contribution suit. That suit was entitled Contribution Suit No. 118 of 1910 and was tried before the Subordinate Judge of Gaya. The decree in that suit was apparently amended by inserting some costs on the 27th June 1914. I merely mention this fact because I find in the evidence that that decree is on some occasions referred to as the decree of the 27th June 1914. On the 12th August 1911 one Bhawani Kuer obtained a decree in a Title Suit No. 76 of 1911 in the same Court against Asfandiar Khan, the first of the decree-holders, in the suit just mentioned. That was a suit for delivery of possession and mesne profits in a village.. Between 1911 and the beginning of 1917 there were some attempts made, by Bhawani Kuer to execute that decree, which proved infructuous. Then on the 12th February 1917 Gauri Shanker, who is one of the respondents in the present appeal, purchased from Bhawani Kuer the decree which she had obtained against Asfandiar, and he thereupon made an application for execution of that decree and prayed for attachment of Asfandiar''s decree against Wazir Bibi. His petition was dated the 25th May 1917, and the mode in which he sought to get the assistance of the Court in execution of the decree be had purchased from Bhawani Kuer was by praying that Asfandiar''s decree against Wazir Bibi might be attached and that he, Gauri Shanker, should be authorised to execute that decree and realise the decretal amount. In the course of that execution case taken out by Gauri Shanker an order was made on the 9th July 1917, which was to this effect:

Let Gauri Shanker, the present decree-holder, be substituted in the place of Musammat Bhawani Kuer. Process-fee worth Rs. 2 filed. Issue attachment of decree fixing 19th July 1917 for orders.

The decree which is attached by that order is the decree obtained by Asfandiar Khan and Janoo Bibi against Wazir Bibi, Perhaps I ought to add that the only interest in that decree which Gauri Shanker could have was the interest of Asfandiar Khan. There was an interest of Janoo Bibi which had not passed to him under the attachment and no claim is made by him in so far as Janoo Bibi''s interest is concerned. The order which I have just mentioned having been made, it would appear that in so far as Gauri Shanker was seeking the assistance of the Court for the execution of his decree, that is to say, the decree which he had purchased, he had got all he wanted except possibly some formal order which might have to be made later on. He had had his name substituted in place of the vendor of the decree, the original decree-holder, and he had got an order attaching the decree of the 2nd April 1910, and the only thing to be done then was for him to take out execution proceedings under the earlier decree which had been attached and endeavour to realise the decretal sum. Then, for some reason which does not appear, on the 19th July 1917, 10 days after the order which I have just referred to, there is an order in the order-sheet to this effect:

Copy of orders for attaching decree of Money Suit No. 118 of 1909 disposed of on 27th June 1914 received. Ordered case dismissed for want of further prosecution.

That being so, it appears that on the 26th August, that is, rather more than a month later, the present appellant, Amirul Hasan, purchased from Asfandiar and Riayasat Bibi who had succeeded to the interest of Janoo Bibi the decree which they then had against Wazir Bibi, and on the 9th September Gauri Shanker filed an application for execution of that decree in pursuance of the order of attachment which he had already received in the execution proceedings in the title suit. On the 5th November 1917 Amirul Hasan also applied for substitution of his name and for execution of the same decree claiming that it had been purchased by him. When the matter came before the Subordinate Judge, who had to decide these two cases, they both being upon his file, it was obvious that he could not allow both the applicants to execute the same decree as they were claiming in different interests. It was contended on behalf of Amirul Hasan, who is the appellant in this case, that as there had been an order made in the execution proceedings in the title suit on the 19th July 1917 dismissing: that execution case for want of further prosecution, that Order XXI, Rule 57, of the CPC applied, which provides that where any property has been attached in execution but by reason of the 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 and that upon the dismissal of such application the attachment shall cease. It was contended by Amirul Hasan that there had bean a dismissal for default in this case and, therefore, after the 19th July 1917 there was no attachment subsisting of the decree, which he had shortly after that date purchased from the original decree-holders. He claimed that he was entitled to maintain the execution case and that Gauri Shanker had no right or title to do so. The learned Judge decided in favour of Gauri Shanker. The conclusion which he came to was that the dismissal of the original execution case, that is to say, the execution case in the title suit, did not have the effect of setting aside the attachment and in fact the view which the learned Judge has taken is that all that was necessary to be done in that execution case had been done. The attachment had been made and the applicant had been given leave to substitute his name in place of that of the original decree-holder and all that now remained to be done was to take out execution proceedings under the attached decree. It is quite clear that if in fact the execution proceedings are '' dismissed by reason of any default on the part of the person applying for execution that would undoubtedly have the effect of releasing any property that might have been attached in those execution proceedings, and the question we have to consider in this case is, what in fact was the effect of this order of the 19th July dismissing the execution proceedings for want of further prosecution. It is impossible to say the exact reason which induced the learned Judge to make such an order on that occasion, but it seems to me that it is impossible to conceive that there was, 10 days after the attachment order had been made, any default on the part of Gauri Shanker, who was applying for execution, which would have enabled the learned Judge to dismiss the case by reason of that default. There is nothing under the rules, so far as I am aware, which provides that where a decree is attached in the manner in which this was, the execution proceedings should be taken out within 10 days after the order was made nor can I find from the order-sheet any order which compelled Gauri Shanker within 10 days or any period to take out proceedings for executing the attached decree, and I have asked the learned Vakil for the appellant whether he can tell me in what respect there was default. He says that the applicant ought to have seen that the execution case was kept alive until he took out execution proceedings under the attached decree. It does not seem to me that there was any obligation upon the applicant to apply to the Court from time to time merely to see that the execution proceedings were kept alive, when in fact there was nothing further to be done in those proceedings until the attached decree had been realised by Gauri Shanker. That being so, it seems to me, whatever may be the wording of the order, that in truth and in fact there was no dismissal of the execution proceedings by reason of any default on the part of the applicant which brings it within Order XXI, Rule 57, of the Civil Procedure Code, and if that is so, it follows that the attachment, which was made in order to enable the applicant to take out execution proceedings under the decree which was attached, remains in force notwithstanding the dismissal of the original execution proceedings which, as far as I can see, ought never to have been dismissed at all. It may be that the learned Judge, thinking that there was nothing further to be done in the execution taken out in the title suit, had wished to get rid of it from his file and accordingly made the order which he did, leaving the matter to proceed under the decree which had been attached, as it was by executing that decree that the applicant expected to get satisfaction. Having come to this conclusion upon the question of the effect of the order made dismissing the execution proceedings, it follows that if and so long as the attachment remained in force, any dealings by the original decree-holder or any transfer or delivery of property comprised in the decree attached would be void as against the claims enforceable under the attachment. That is clearly laid down in Section 64 of the CPC and, therefore, as between the two rival claimants to execute this decree there can be no doubt in my mind that the result arrived at by the learned Judge in the Court below was right and in so far as he allowed the execution to proceed on behalf of Gauri Shanker this appeal ought to be dismissed.

I have assumed in dealing with this case that the appellant has a right to appeal. But as on the merits he fails, it is not necessary for us to determine the point raised by the respondent that in fact there was no right of appeal and that the only method of approaching this Court was by revision, This does not arise because, one way or the other, assuming we had been in favour of the appellant on the merits, we should have been entitle ed to go '' into the case either because he had a right of appeal or because he was, entitled to come before as by way of revision, and he has taken both courses. But as I have already said, that question we leave undetermined because it does not seem to arise at the present moment. The judgment which I have just delivered will govern the two appeals Nos. 236 and 287 of 1917 and the two Civil Revisions Nos. 333 and 334 of 1917, all of which are dismissed with costs. We assess the costs at Rs. 135 for all four cases.

Mullick, J.

I agree.