Govinda Padayachi vs Kannammal

Basheer Ahmed Sayeed, J.—These two second appeals arise out of the common judgment of the learned District Judge of South Arcot dismissing two appeals preferred against the order of the learned District Munsif of Vridhachalam dismissing in turn the two-claim, applications M. Ps. Nos. 655 of 1951 and 668 of 1951.

The decree-holders, respondents, in these two appeals had obtained a decree in O. S. No. 14 of 1937 on the file of the District Munsifs Court of Vridhachalam, South Arcot, for specific amounts by way of maintenance in their favour. These amounts were also made a charge over the properties set out in the schedule to the decree. The decree also was against the assets of the first defendant in the hand of the other defendants. Subsequent to the decree the charged properties appear to nave been sold away by the heirs of the first defendant.

The decree-holders applied for execution of the decree in E. P. No. 215 of 1950 and prayed for attachment of certain properties not charged, and they were accordingly attached. Two of these proportion had already been sold by Thangammal, a daughter-in-law of the first defendant, acting on behalf of her minor children in favour of Govinda Padayachi. This sale was under Ex. A-1 dated 19th September, 1944. Another Thangammal was the purchaser of another property under the sale deed Ex. A-4 dated 24-12-1945. After the attachment of these properties, the vendees Govinda Padayachi and Thangammal filed the two applications M. P. Nos. 655 of 1951 and 66$ of 1951 to get these properties released, from attachment. The applications were made under O. 21, R. 58 , C. P. C.

By a common order dated 14th September, 1953 the learned District Munsif of Virdhachalam dismissed these claim petitions upholding that the attachment made on 19-4-1944 was valid and that the rights of the claimants could not prevail as against the decree- holders rights. Against that order the two claimants preferred the two appeals A. S. Nos. 371 and 382 of 1953. The learned District Judge concurring with the order of the learned District Munsif dismissed the two appeals in a common order dated 19-12-1953. The two claimants Govinda Padayachi and Thangammal have preferred these two miscellaneous second appeals referred to above.

It must be stated that towards the decree obtained by the respondents, the judgment-debtors had paid some amounts in instalments. The decree itself was for payment of Rs. 10 per mensem by way of maintenance for the wife and Rs. 5 for children. When the claim petitions were being investigated in E. P. No. 215 of 1950 by the learned District Munsif the records disclosed that the sale deeds in favour of the respondents-vendee had come into existence after attachment had been effected on a prior execution petition, viz., E. P. No. 279 of 1944. That attachment was on the 14th September, 1944; that is, some days prior to the sale deeds in favour of the respondents.

The execution application in which the prior attachment had taken place, viz, E. P. No. 279 of 1944, was being adjourned from time to time and some claim petitions appear to have also been filed in that petition, which, however, did not succeed. Ultimately, the execution petition itself was adjourned for sale papers more than once. On the 14th April, 1945 the executing Court terminated the proceedings by an order in these terms:

Not pressed. Attachment to continue.

The learned District Munsif, who construed these proceedings after he has reserved orders in the claim petitions now in question, came to the opinion that the sale deeds in favour of the respondents having come into existence after the properties had been attached and during the continuance of the attachment, could not prevail against the decree-holders. It is this conclusion of the learned District Munsif that has been attacked before the learned District Judge and is also, now pressed for in theses two appeals.

A preliminary point was taken that the appeals before the learned District Judge were not competent on the ground that S. 47, C. P. C., did not apply to petitions filed before the learned District Munsif. It was argued that the claimants in the two petitions could not be deemed to be legal representatives of the judgment-debtors. In view of the decisions of this Court in Guduri Anjayya and Another Vs. Devabhaktuni Gundarayudu and Others, and Dunna Venkata Rao Vs. Sree Rajah Saheb Meharban I Dostan Sree Rajah Rao Venkatakumaramahipathi Surya Rao Bahadur Garu and Another, , I do not think that there is any need for me to discuss this point at any length. I am of the opinion that the ruling in these decisions would apply to the facts of this case and the appeals having been entertained and disposed of by the learned District Judge, the second appeals in this Court are competent and they have :to be dealt with here on their merits.

Mr. Natesan in the. main contended that the order paced on the 14th April 1945, to the effect that the E. P. was ''not pressed'' and that the ''attachment was to continue'' was in fact an order dismissing the E. P. outright and that the expression ''attachment to continue'' was irrelevant and could not amount to a subsistence of the attachment of the properties already made. A good deal of the time was taken in the discussion of the meaning and import of the language of the original R. 57, O. 21, C. P. C., and also the Madras amendment made thereto.

Numerous decisions were also cited by counsel on both sides in support of their respective contentions based on the interpretation of the amended R. 57 of O. 21, C. P. C. But as has been repeatedly laid down by the decisions of this Court and also of other High Courts in this country, what was intended and what was expressed by the learned District Munsif, when he passed the order on the 14th April 1945, has to be determined in the light of the circumstances and on the facts of the case, and there can be no uniform rule applied in every case, irrespective of what the circumstance and the facts may be. Both sides have conceded that the determination as to what was intended by the learned District Munsif, when he passed the order in question has to be done only with reference to the circumstance when the order was passed.

We have then to consider the actual circumstances in which tire learned District Munsif passed the order in terms viz., ''Not pressed. Attachment to continue'' on 14-4-1945. It must be remembered that the decree itself was only a maintenance decree under which the maintenance amount was to be paid in instalments from month to month. The possibility, therefore, of these instalments being paid regularly, default being committed thereof, and such default being made good at a later stage, cannot be ignored.

As a matter of fact, in the case there seems to have been default committed, lump sums having been paid to make good the defaulted instalments. Whenever default is committed under an instalment decree, it is the right of the decree-holders to seek the aid of the Court to enforce payments under the decree and the execution of the decree can be avoided by the judgment-debtors by making payments or by asking extension of time for payments of the defaulted instalments. The application in question seems to have been one such application for execution of the decree to enforce payment of the defaulted amounts.

When such an execution is taken out, there is also the possibility of the decree-holders coming to an understanding with the judgment-debtors in regard to the manner and the method of paying the defaulted instalments. Any such understanding would necessarily have effect upon the further prosecution of the execution petition. It is in this background that the last order in question has to be considered and understood. The earlier order was one directing the decree-holders to file the sale papers. Thereafter the decree-holders approach the Court and represent that they do not propose to press the application hut at die same time make a request that the attachment should be continued.

In these circumstances the Court on invitation by the decree-holders passes the orders ''Not pressed. Attachment to continue.'' The question then is whether either the decree-holders or the Court intended to put an end to the execution petition once for all, or whether it was intended by the applicants, as also by the Court, that the execution before the Court was to be kept in suspense and renewed later on, whenever the need arose for the same and that in the meanwhile the attachment that had already been effected should not be raised but should be allowed to be continued until such time as the decree-holders were compelled to approach the Court to render them further and in the matter of the realisation of the debt due under their decree.

It is contended by Mr. M. S. Venkatarama Aiyar, the learned counsel for the decree-holders that if the result which was intended to follow from the terms of the order passed by the Court was that the attachment should be continued, the meaning to be attached to the expression ''not pressed'' could not amount to a dismissal of the execution application for default but could be understood to mean only that the application was kept in suspense for the time being to be renewed at a later stage. On the other hand, Mr. Natesan would argue that R. 57 of O. 21, as amended by the Madras High Court does not leave any scope or room for an order of the kind passed by the learned. District Munsif in he present case.

It is his contention that according to the first part of R. 57, the Court has only two alternatives when any property was attached in execution of a decree. The first is to dismiss the application, and the second is to adjourn the proceedings to a future date, and when it resorts to either of these alternatives the Court has to make it clear whether the attachment continues or ceases, In this case, the Court did not adjourn the proceedings to a future date.

According to him the effect of the order, therefore, is only a dismissal, though the very term was not used, and when a dismissal has taken place, there cannot be a continuation of the attachment and any order that the attachment should continue could not be of any avail and it would also be meaningless in the context. The proviso to R. 57 of O. 21, is next relied upon by the learned counsel for the appellant, which says that when the Court dismisses the execution application by reason of the decree-holder''s default, the order shall state that the attachment do cease.

His contention is that when the decree-holders reported to the Court that they were not pressing the execution application, it meant that they were not willing to prosecute the application further and such failure to prosecute the application tantamount to a default on the part of the decree-holders and that when such a default occurs by reason of the failure of the decree-holders to further proceed with the prosecution of the execution application, the inevitable order should be that the attachment should cease, though it may not be expressed in such terms.

If the Court had passed an order that the attachment should continue, notwithstanding the fact that the decree-holders had committed default by their failure to proceed with the execution application, the order that attachment should continue is not warranted and is meaningless and could not be given effect to and the Court is not authorised by the proviso to R. 57 of O. 21 to pass an order continuing the attachment when default on the part of the decree-holders had arisen, and which default left the Court with the only alternative, viz., to dismiss the application. This argument seems to be plausible, but I do not think that in the circumstances of the present case it can be accepted.

The proviso in the first instance states that the Court should dismiss the application; in the second instance, it provides that such dismissal should be by reason of the decree-holders default; and in the third instance, it lays down that when these two things happen, the Court shall state that the attachment do cease. It is obvious that when the executing Court made an order in the present case, it did not ''dismiss'' the application. It merely stated ''not pressed''. ''Not pressed'' need not necessarily mean a dismissal in all cases.

It may mean that it is an order for statistical purposes which necessarily need not be a final termination of the execution application. It may also mean that the execution application is for the time being not pressed, but kept in suspense for being renewed at a later date. When the order does not state that the application is dismissed, it is difficult to say that the Court intended to arrive at that result by the actual use of the words ''not pressed''.

In the second place there should be a default on the part of the decree-holder in order to enable the Court to dismiss the application and to direct that the attachment should cease. In this case there has been only a report to the Court that the application is not pressed. Such a report need not necessarily mean, nor involve a default on the part of the decree-holder. If the Court understood the representation of the decree-holders that they were not pressing the application to be a default on their part or a failure to prosecute the execution application, the Court would certainly have not stopped with the expression ''not pressed'' alone, but would have indeed gone further and stated that the application not being pressed was dismissed.

On the other hand, what the Court has actually done is that instead of following up the expression ''not pressed'' by the expression ''dismissed'', it records the expression ''attachment to continue'' instead of stating that ''attachment shall cease''. This would naturally lead to the inference that the Court was not willing to dismiss the application but on the other hand was willing to allow the attachment to continue, notwithstanding the fact that the decree holder was reporting that he was not willing to proceed with the application further at that time. The Court did not, therefore, understand the representation ''not pressed'' to mean that there was a failure or a default on the part of the decree-holders to merit an order of dismissal or a discontinuation of the attachment already effected.

If the Court had intended that the execution petition should be treated as dismissed for default and that the proceedings should terminate finally, it would have felt bound to order that the attachment was also to cease. But the Court exercised its discretion actually the other way. It did not dismiss the application; nor did it also order the ceasing of the attachment. When such an order has been made in the exercise of a discretion vested in the Court, it cannot be said that the Court intended a final termination of the execution application. The Court cannot be said to have also found that there was default on the part of the decree-holders when it did not choose to make an order that petition stood dismissed.

I am therefore unable to hold in this case that there has been a dismissal for default. Nor am I prepared to hold that non-prosecution of the execution application conveyed by the term ''not pressed'' would necessarily mean a default of the kind contemplated under R. 57. Non-prosecution may be due to various causes, which may not be expressed by the party reporting to the Court that the application is not pressed. In my opinion, while the old R. 57 of O. 21 provided for only two alternatives and it gave rise to difficult situations, the Madras amendment was intended to make the position more elastic and vest a greater discretion in the Court when disposing of execution applications.

I am inclined to agree with the rulings in M.A. Rm. Prianan Chettiar Vs. P.V.A.R.K.R. Lakshmanan Chettiar and Others, , wherein a Bench of this Court has held that an execution petition which is ''closed'' does not stand dismissed so as to attract the mischief of O. 21. R. 57, C. P. C. The distinction between ''closed'' and ''dismissed'' has been pointed out in the said decision; and the argument that failure to pay batta amounted to a default and the closing of the application should be cons trued as the dismissal was repelled. In AIR 1944 324 (Nagpur) , it was held by Bose, T. that "When the Court expressly keeps the attachment alive it cannot be said to have ceased unless the provisions of O. 21, R. 57, apply, that is to say, when there has been a default of the decree-holder which compels the Court to dismiss the application.,

It however impossible to say that there is any default on the part of the decree-holders when they accede to their judgment-debtors'' request for time or for instalments."

This decision, in my opinion, would apply to the facts of the present case, in Saraswathi Madthi Vs. Rama Shetty and Others, , it was held that the dismissal of an execution petition for default of a decree-holder terminates the attachment, whether there was or was not an order of the Court stating the consequence. As already pointed out, in this case, it cannot be said that there was a dismissal or a default on the part of the decree-holders. With respect I am in entire agreement with the reasoning that is found in this decision, which fully applies to the facts of the present case.

I must observe in this connection that the several decisions, which Mr. Natesan, the learned counsel for the appellant, has placed before me beginning from Thakur Prasad v. Fakirullah, ILR 17 All 106 (F) of the year 1895 and Mandhayan Sheikiya v. Badram Dalni, 17 Cal WN 204 (G) of the year 1912 and ending with Dhonda Misir v. Sheikh Quarban, AIR 1947 All 313 (H) and Ramabadra Reddiar Vs. Ramachandra Reddiar and Others, do not seem to be of much assistance to the learned counsel to support his contention that the expression used in the present case should be interpreted to mean that it was a dismissal for default and that the attachment should be automatically deemed to have ceased, though there was an order to the contrary effect.

Consequently he claimed that the sales made in favour of his client should be upheld. No general rule can be inferred from these decisions. I am, on the other hand, of the view that in this case, as has been correctly held by the Court below, S. 64, C. P. C, does apply to the facts, and these two appeals have, therefore, to be dismissed and are accordingly dismissed with costs, one set only. No leave.