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Madhya Pradesh High Court · body

1950 DIGILAW 71 (MP)

Mainabai v. Meghraj Jodhrajji

1950-11-14

MEHTA

body1950
JUDGEMENT : The facts leading to this appeal are as follows : The plaintiff Mainabai and her son Ramratan filed suit for a declaration that their house situated at Ratlam was not liable to attachment and sale in execution of the decree obtained by Meghraj and Ramnarayan against Hariram Darji. Hariram Darji is dead and respondents Nos. 3, 4 and 5, Ratanlal, Laxminarayan, and Mangilal are brought on record as his sons and legal representatives of the deceased Hariram. Mainabai's objection under O. 21, R. 58 was disallowed and hence this declaratory suit under O. 21, R. 63. 2. Originally, the house attached belonged to Hariram Darji, the judgment-debtor Hariram Darji sold the house in suit on 1-3-1943 to Mainabai and her son Ramratan in consideration of Rs. 2,497/-. The house in suit was first attached on 22-2-1939 in execution case No. 386 of 1938 by the decree-holder. This execution was disposed of on 16-10-1939. The Court's order was that the house shall remain under attachment and as the decree-holder does not want to proceed with the execution the file be disposed of. Then second execution case No. 499 of 1939 was presented on 15-3-1940. This was disposed of on 12-5-1941. The decree-holder remained absent but the pleader for the decree-holder was present. In this execution the sale proclamation was announced by beat of drums but as there were no bidders and the decree-holder was also not present, the execution was struck off and the house continued to remain in attachment. The third execution case No. 170 of 1942 was presented on 22-4-1943. In this execution Meghraj and Ramnarayan prayed for rateable distribution in the execution, of one Champalal Kothari. The same house was being sold in Champalal's decree. This execution was disposed of on 14-12-1944 and the proceedings state that the decree-holder's pleader was present. The decree-holder was absent and his pleader stated that he had no instructions and consequently the execution was dismissed for default. The third execution case No. 170 of 1942 was pending in the execution Court, the decree-holder filed appeal to the Ratlam High Court and the High Court held that the attachment continued and the house shall remain under attachment. The decree-holder was absent and his pleader stated that he had no instructions and consequently the execution was dismissed for default. The third execution case No. 170 of 1942 was pending in the execution Court, the decree-holder filed appeal to the Ratlam High Court and the High Court held that the attachment continued and the house shall remain under attachment. The High Court sent back the execution file on 18-5-1945 and the execution case was renumbered as 144 of 1944; this was disposed of on 11-6-1948 stating that the appeal has been filed in the High Court and the decree-holder does not want to proceed with the execution, pending appeal in the High Court. Hence execution was consigned to the Record room. 3. The main question is whether at the time when Hariram Darji sold the house in suit on 1-3-1943 to Mainabai and Ramratan, the house was under attachment or the attachment had ceased. 4. Under O. 21, R. 57 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, it shall either dismiss the application or for any sufficient reason adjourn the proceedings to a future date. Upon the dismissal of such application the attachment shall cease. Mr. Patel's argument was that on 16-10-1939 the decree-holder committed default and did not proceed further in the execution. The execution was dismissed on account of his default with the result that upon the dismissal of such application for execution the attachment ceased. Since the attachment had ceased and there was no order for re-attachment there is nothing to prevent the judgment-debtor from selling the property to Mainabai on 1-3-1943 and Mainabai acquired the rights in the property as a purchaser. As long as the property remained under attachment during the pendency of attachment it cannot be sold. But once the attachment was removed by the default of the decree-holder then the attachment ceases. In this case the mere order of the Court that the attachment shall continue will have no force because the execution was dismissed as the decree-holder did not take steps to proceed with the execution. Mr. But once the attachment was removed by the default of the decree-holder then the attachment ceases. In this case the mere order of the Court that the attachment shall continue will have no force because the execution was dismissed as the decree-holder did not take steps to proceed with the execution. Mr. Patel relied on the cases, 'NANU MAL v. AMARNATH', AIR 1938 Lah 590; DAIM SHAH v. VIR BHAN', AIR 1934 Lah 395; 'AYYAPPA NAICKER v. THAYAMMA', AIR 1935 Mad 17 ; 'VENKATA RAO v. SURYA RAO BAHADUR GARU', AIR 1950 Mad 2 . Ratio decidendi in all the above decisions is where in execution of a decree the Court orders that the record shall be consigned to the record room and the attachment be maintained, the order, howsoever worded, means that the execution application is dismissed and the attachment is terminated. Such applications cannot be revived. On a careful perusal of the execution cases Nos. 386 of 1938 and 499 of 1939, it appears that the decree-holder had committed default and the Court was unable to proceed further with the application for execution and under the circumstances it was the duty of the Court either to dismiss the application or adjourn the proceedings to a future date. It appears that the execution was not adjourned but it was dismissed because of the default on the part of the decree-holder to take further steps in the sale of the attached property. The word 'default' includes failure to do what a decree-holder is bound to do i.e., to proceed with the execution, where a Court dismissed an execution application even at the request of the decree-holder the legal consequence of such dismissal is that the attachment is released and where execution proceeding is struck off at the request of the decree-holder it amounts to a default within the meaning of O. 21, R. 57 and the attachment ceases to exist. Hence, on a consideration of all the authorities discussed above, it appears to me that the decree-holder committed default in not carrying out execution for the sale of the attached property and hence the attachment ceased. Under these circumstances the purchase of the house by Mainabai and Ramratan on 1-3-1943 was a perfectly valid sale. At that time the property was not under attachment. 5. Under these circumstances the purchase of the house by Mainabai and Ramratan on 1-3-1943 was a perfectly valid sale. At that time the property was not under attachment. 5. I, therefore, allow the appeal, set aside the judgment and decree of the lower Appellate Court and hold that the property in dispute belongs to the plaintiff-appellants and is not liable to attachment and sale in execution of a decree. The plaintiff-appellants' prayer is, therefore granted and they are declared to be the owner of the house in dispute. The plaintiff-appellants are entitled to costs throughout. Appeal allowed.