Shriniwas Vithal Pai Vs Hari Sabaji Kamat

Baker, J.@mdashThese are companion appeals arising out of two suits in which the point is the same and may be disposed of in one judgment. The plaintiff sued for a declaration that the property in suit was not liable to be sold in execution of the decree in Suit No. 250 of 1903 obtained by defendants against the heirs of one Govind Baghunath Pai. The facts are as follows. Suit No. 250 of 1903 was filed by the father of the present defendants against Govind Raghunath Pai, His immovable property was attached before judgment, and on November 11, 1904), a decree for Rs. 4,000 was passed against him, which was confirmed on appeal on February 28, 1906. In 1907, in execution of the decree in Suit No. 190 of 1905 another decree-holder attached and sold properties Nos. 1, 5, 6, 7, 8, 9, and 12, and they were purchased by one Kamat and sold to plaintiff on January 1, 1914. No objection is raised to this in appeal The remaining properties, Nos. 2, 3,4,10 and 11, were sold to plaintiff by the heir of Govind Pai, his daughter in-law, in May 1914. The present defendants had filed two darkhasts in 190 and 1913. In the first darkhast they asked for rateable distribution, and for attachment of movables. Both the darkhasts were disposed of, the second one being dismissed. In 1916 defendants again sought to bring the property to sale, and this resulted in plaintiff''s suit for a declaration that the property is not liable for sale. The first Court, the Subordinate Judge of Malvan, grunted the plaintiff the declaration sought, and the decree was confirmed in appeal. Defendants make this second appeal.

2. The only point in appeal is whether the property purchased by plaintiff from the heir of the judgment-debtor is liable to sale in execution of the defendants'' decree against Govind Raghunath Pai. The defendants'' contention is that the alienation in favour of the plaintiff is invalid because the properties were still under attachment in Suit No. 250 of 1903. The point is one of importance. The question for decision is whether the attachment before judgment in Suit No. 250 of 1903 had come to an end by reason of the dismissal of the darkhasts in 1909 and 1913, that its whether the provisions of Order XXI, Rule 57, are, or are not, applicable to the case. Order XXI, Rule 57, states that:�

Where any property has been attached in execution of a decree, but by reason of the decree holder''s default the Court is unable to proceed further with the application for execution, if shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of each application the attachment shall cease.

The question is whether this rule applies to attachments before judgment. The plaintiff contends that the defendants having allowed their first darkhast, No. 49 of 1909, to be disposed of, and having done nothing further, the property was freed from attachment under Order XXI, Rule 57, and that by the defendants'' own conduct and negligence they had shown their intention not to proceed against the property, and hence the attachment came to an end in April 1918, when the darkhast was dismissed.

3. The reasoning of the learned District Judge is as follows.

4. The facts of the present case are nearly on all fours with those in Banuddin Sahib Vs. Arunachala Mudali, , where it was held that the provisions of Order XXI, Rule 57, have no application in the case of an attachment before judgment, even though in execution of the subsequent decree application may have been made for rateable distribution of the assets that might be realised by the sale of the properties attached. This was followed in Venkatasubbia v. Venkata Seshaiya ILR (1918) Mad. 1. The scope of the rule, however, has been materially narrowed by the decision of the majority of the Full Bench in Meyyappa Chettiar v. Chidambaram Chettiar ILR (1923) Mad. 483 whore it was held that the provisions of Order XXI, Rule 57, would apply to the case of an attachment before judgment followed by an application after the decree for the purpose of bringing the property to sale. In the present case, although the defendants had filed two applications for execution in 1909 and 1913 respectively, in neither of those applications had they specifically sought to bring to sale the immovable property which had been attached before judgment. Both these applications were againet the movable property of the judgment-debtor, though the application of 1909 went bo far as to request rateable distribution of the assets of the immovable property which was being proceeded against in execution by other judgment-creditors. In Meyyappa v. Chidambaram it was held that when after the decree application is made with a view to bringing to sale property attached before judgment, such attachment may be treated for the purpose of Order XXI, Rule 57, as attachment in execution. It is true that in the present case there has been no application in execution to bring the attached property to sale which application has been dismissed, but the District Judge is of the opinion that there is no reason why a decree-holder, once he has applied for execution, should be placed in a more advantageous position merely by reason of the fact that he has obtained attachment before judgment than a decree-holder who has obtained attachment after judgment. If the provisions of Order XXI, Rule 57, are in no case to have effect in respect of an attachment before judgment, it becomes open to a decree-holder who has obtained attachment before judgment to maintain the attachment indefinitely or at any rate so long as the decree remains executable, He can save limitation by filing successive applications for execution and by abstaining from proceeding against the specific property attached and thus prevent the judgment debtor from dealing with it. There is no reason why a higher degree of diligence should be required from a decree-holder who has obtained attachment after judgment than from one who has obtained attachment before judgment. By their application in 1909 the appellants requested that they should be allowed to share rateably in the proceeds of the sale of the property already under attachment and In process of being brought to sale by the other decree-holders This amounts to acquiescence in the sale of the property which was already attached before judgment on their own application, and so Meyyappa v. Chidambaram applies.

5. The learned Counsel for the appellants contends that the attachment before judgment subsisted, and that the case in Banuddin Sahib v. Arvnaehala Mudali covers the case. It is not overruled by Meyyappa v. Chidambaram, and this latter case does not apply because in the present case there has not been an application in execution to bring the attached property to sale, nor has such application been dismissed. He further relies on Bohra Alchey Ram v. Basant Lal ILR (1924) All. 894. For the respondents it is contended that after Govind''s death the attachment did not continue, and that the appellants'' own conduct in allowing the same property to be attached by others and asking for rateable distribution of the proceeds of the sale shows that they did not regard the attachment as subsisting. Order XXI, Rule 57, was rightly applied, following Meyyappa v. Chidambaram. The original view was that Order XXL, Rule 57, only applies to attachments in execution as laid down in Venkataaubbiah v. Venlcata Senhaiya. Reference is made to Order XXXVIII, Rule 7; Aruna ohalam Chetty v, Periasami Servai ILR (1921) Mad. 902 and the remarks at p. 505 in Meyyappa v. Chidambaram, Order XXXV III, Rule 9, only refers to what takes place while the suit is pending. Order XXXVIII, Rule 11, provides for what is to happen when the suit is disposed of. After the decree ia passed, the attachment becomes one in execution, and ceases to be one before judgment, although Bohra Akhey Ram v. Basant Lal is against this view, The facts in Banudddin Saheb v. Arwnchala Mudali are obscure, The respondents'' counsel further refers to Ganpatibhatta v. Devappa ILR (1922) 46 Bom. 942 which, however, does not refer to the case of an attachment before judgment. I am of opinion that Order XXXVIII, Rule 9, applies only to what happens before decree. What happens after the decree is dealt with by Order XXXVIII, Rule 11, Up to the date of the Full Bench decision in Meyyappa v. Chidambaram it was held that Order XXI, Rule 57, did not apply to attachments before judgment: cf. Banuddin Sahib v. Arunachala Mudali; JBohra Akhey Ram v. Baeant Baker J. Lai; and Venhatasubbiah v. Venkata Seshaiya. Under the ruling in Meyyappa v. Chidambaram the attachment before judgment is converted after decree into an attachment in execution, and the provisions of Order XXI, Rule 57, will apply. But, although Order XXI, Rule 57, will apply, Meyyappa v. Chidambaram only goes so far as to show that, upon the dismissal of an application for execution by bringing the attached property to sale on account of the decree-holder''s default, the attachment will cease. Therefore, even applying the provisions of Order XXI, Rule 57, in order that the attachment before judgment should come to an end, it is necessary that the decree-holder should apply for execution by sale of the attached property, and that his application should be dismissed for default. This condition has not been fulfilled in the present case. The decree-holder endeavoured to execute the decree by sale of movable property only and not of the immovable property attached, and though he asked for a share in the proceeds of the sale of the immovable property in execution of the decree got by another decree-holder, he haa not himself asked for sale of the immovable property attached. The effect of the judgments of the lower Courts, therefore, is to still further extend the principle laid down in Meyyappa v. Chidambaram, and to hold that an attachment made before execution of immovable property ceases to exist on the dismissal of an application by the decree-holder for execution by sale not of the immovable property attached before decree, but of movables, None of the reported cases has gone so far as this, and I am not prepared to accept this position as correct. The facts of the present case do not satisfy the conditions laid down by Order XXI, Rule 57. There has been no default on the part of the decree-holder so far as the execution in regard to the immovable property is concerned. I cannot regard the decree-holder''s request that he should share rateably in the proceeds of the sale of the property already under attachment as amounting to an application for sale of the property attached before judgment in his own suit.

6. In these circumstances, I disagree with the view of the Courts below, I reverse the decree, so far as the properties purchased from the judgment-debtor''s heir are concerned, and direct that the plaintiff''s suit should be dismissed. As the appeal has not been pressed with regard to the properties sold at the auction Bale each party will bear its own costs.

7. The order in the other appeal will be that the plaintiff''s suit is dismissed with costs.