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O. CHINNAPPA REDDY, M.H. KANIA AND K. JAGANNATHA SHETTY, JJ.
Civil Appeal No. 3535 of 1982, D/- 19-8-1987.
Nancy John Lyndon, Appellant
Versus
Prabhati Lal Chowdhury and others, Respondents.
Code Of Civil Procedure, 1908 - Order 21, Rule 58, Rule 57, Rule 63 - Section 64 - Property - Execution Sale - Private Sale - Judgment-debtor to Bharat Shamshere Jung Bahadur Rana and sale of said property by said Bharat Shamshere Jung Bahadur Rana to respondent were both effected during subsistence of attachment - Althoughattachment ceased on dismissal of said Title Execution case said attachment was revived by reason of restoration of said case - It was submitted by him that, in view of provisions sale of said property by judgment-debtor to Bharat Shamshere Jung Bahadur Rana and sale of same by Bharat Shamshere Jung Bahadur Rana to respondent are both void as against appellant decree-holder – Whether said restoration would restore original attachment and, if so, to what extent - Whether under execution sale or under private sale, who have acquired title on assumption that such orders were valid in law - Held, An order for releasing property from attachment is set aside on appeal, effect is to make property still subject to attachment and to restore state of things which had been disturbed by order of release - It makes no difference whether order for releasing attachment under O. 21, R. 63. Civil P. C. is passed in appeal or revision - Execution proceedings does not operate as revival of attachment so as to prejudice rights of strangers who have in interval acquired a title to property - Reversal of judicial orders leaves unaffected rights of strangers, bona fide purchasers, whether under execution sale or under private sale, who have acquired title on assumption that such orders were valid in law - A careful reading of this decision shows it is of no assistance to case of respondent because judgment makes it clear that what was really held was that in absence of statutory provisions to contrary, Court cannot cancel order of dismissal for default of an execution application with retrospective effect so as to prejudice title that might have been acquired in interval by a stranger, when property was admittedly not in custody of Court - This decision might have helped respondents if alienations in question had been effected during interval between dismissal of Title Execution Case and its restoration - But, in present case, alienations were effected when attachment was subsisting as court have already pointed out and hence this decision is of no assistance to respondents - Court may mention that our attention was drawn to amendment of R. 57 of O. 21 made by High Court, but in our view that amendment merely provides that although under R. 57 of O. 21 attachment would cease on an order dismissing application for execution it is open to Court to make an order to contrary which would mean that Court could make an order to continue attachment for some time - Amendment, however, is of no relevance in case before – Appeal Allowed.
Judgement
KANIA, J. :- This is an appeal directed against the judgment of a Division Bench of the High Court of Calcutta in appeal from Original Order No. 282 of 1981 with C. R. No. 3842(M) of 1980. The relevant facts for the purpose of this appeal can be shortly stated. In August 1969, the appellant before us obtained a money decree in High Court at Calcutta against the judgment-debtor Maharajkumar Maley Chand Mahatab. On 31st July, 1970 the appellant filed a petition for execution of the decree, numbered as Title Execution Case No. 19 of 1970. On 3rd August, 1970 attachment was levied in execution on open land belonging to the judgment-debtor admeasuring about 19 Kathas at 10A, Diamond Harbour Road, and portion of premises No. 2 Judges Court Road, now, numbered as 6/1D, Diamond Harbour Road and 2/A, Judges Court Road, 24 Paraganas respectively. On 14th September, 1970, the judgment-debtor sold a portion of the attached property admeasuring a little over 11 Kathas to one Bharat Shamshere Jung Bahadur Rana. On 29th March, 1972 Bharat Shamshere Jung Bahadur Rana sold a portion of the said land admeasuring a little over 9 Kathas (referred to hereinafter as "the said property") to Prabhatilal Chowdhary and others who are the respondents in the present appeal. On 9th May, 1972 the aforesaid execution petition, namely, Title Execution Case No. 19 of 1970 was dismissed for default. On 16th September, 1975. on an application by the appellant. the said Title Execution Case No. 19 of 1970 was restored. On a petition dated 26th September, 1975 the said property was again attached. Thereafter, a proclamation for sale of the said property was issued under O. 21. R. 66, Civil P. C. The respondents Prabhatilal Chowdhary filed a petition under O. 21, R. 58. C.P.C., for releasing the said property from attachment. This application was registered as Misc. Case No. 8 of 1978. On 11th August, 1980 the said Misc. Case No. 8 filed by Prabhatilal was dismissed. On 16th March. 1982 the aforesaid appeal from Order No. 282 of 1981 and C. R. No. 2843(M) of 1980 was allowed by the Calcutta High Court. It is this decision allowing the said appeal which is assailed before us.
2. Mr. Sanghi, learned counsel for the appellant urged that the sale of the said property by the judgment-debtor to Bharat Shamshere Jung Bahadur Rana and the sale of the said property by the said Bharat Shamshere Jung Bahadur Rana to the respondent were both effected during the subsistence of the attachment. Although the attachment ceased on the dismissal of the said Title Execution case on 9th May, 1972, the said attachment was revived by reason of restoration of the said case on 16th September, 1975. It was submitted by him that, in view of the provisions of S. 64, Civil P. C. the sale of the said property by the judgment-debtor to Bharat Shamshere Jung Bahadur Rana and the sale of the same by Bharat Shamshere Jung Bahadur Rana to the respondent are both void as against the appellant decree-holder.
3. Section 64. Civil P. C. runs as follows :-
"Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment-debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment."
4. There is an Explanation to this section, but it is not material for our purposes.
5. Order 21, R. 57 as it stood prior to its amendment in 1976 and as amended by the Calcutta High Court ran as follows :-
Where any property has been attached in execution of a decree but by reason of the decree-holders 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 unless the Court shall make an order to the contrary."
6. The words "unless the Court shall make an
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