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Andhra Pradesh High Court
Judges : A.V.KRISHNA RAO
Sarnapudi Appanna - Appellant
Versus
Rapanti Narsinga Rao - Respondent
Decided On : 11-29-74
EXECUTION OF DECREE - ATTACHMENT - EFFECT OF DISMISSAL OF EXECUTION PETITION FOR DEFAULT - RESTORATION OF EXECUTION PETITION - REVIVAL OF ATTACHMENT - CODE OF CIVIL PROCEDURE, 1908 - SECTIONS 2(2), 47, ORDER 21, RULE 57.
Fact of the Case:
A decree-holder filed an execution petition for sale and attachment of immovable properties of the judgment-debtor. The execution petition was dismissed for want of bidders and the attachment was ordered to continue for six months. The decree-holder filed another execution petition, which was also dismissed for want of bidders and the attachment was ordered to continue for six months. The decree was transferred to the appellant, who filed another execution petition. The property was again attached and the attachment was ordered to continue. The execution petition was dismissed for the pendency of insolvency proceedings against the judgment-debtor. The appellant filed an application to exclude the time taken by the insolvency proceedings and continue execution proceedings. The application was allowed and the execution petition was restored. The judgment-debtor died and the appellant filed a petition to add the legal representatives of the deceased judgment-debtor and also order attachment and sale of the properties. The executing court ordered the properties to be attached. The attachment was effected and further steps were ordered thereon. The execution petition was dismissed for the default of the appellant. The appellant filed an appeal to the District Judge, who dismissed the appeal as not maintainable.
Finding of the Court:
The court held that the appeal to the District Judge was maintainable as the order of the executing court directing a fresh attachment of the properties was a decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908. The court also held that the dismissal of the execution petition for default of the decree-holder did not have the effect of terminating the attachment already made. The court further held that the restoration of the execution petition had the effect of restoring the attachment.
Issues: 1. Whether the appeal to the District Judge was maintainable? 2. Whether the dismissal of the execution petition for default of the decree-holder had the effect of terminating the attachment already made? 3. Whether the restoration of the execution petition had the effect of restoring the attachment?
Ratio Decidendi: 1. The court held that the appeal to the District Judge was maintainable as the order of the executing court directing a fresh attachment of the properties was a decree within the meaning of Section 2(2) of the Code of Civil Procedure, 1908. The court relied on the definition of decree in Section 2(2) of the Code of Civil Procedure, which expressly provides that the decree shall be deemed to include the determination of any question within Section 47 of the Code of Civil Procedure. Section 47(1) of the Code of Civil Procedure requires that "all questions arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree shall be determined by the Court executing the decree and not by a separate suit." The court held that the question involved in this case was covered by the definition of decree contained in Section 2(2) of the Code of Civil Procedure, and therefore the appeal to the District Judge was competent. 2. The court held that the dismissal of the execution petition for default of the decree-holder did not have the effect of terminating the attachment already made. The court relied on the decisions in Karuppan Chettiar v. Rajangam (AIR 1940 Mad 172) and Sub-rahmanian v. Official Receiver (AIR 1949 Mad 594), which held that an attachment will cease only if the application for execution on which the attachment was effected was dismissed for default and not when a subsequent application was dismissed for default. The court also held that the attachment effected earlier had not ceased, as the attachment sought by the decree-holder in the subsequent execution petition was superfluous and wholly unnecessary. 3. The court held that the restoration of the execution petition had the effect of restoring the attachment. The court relied on the decision in Annapuma v. Lakshmana (AIR 1950 Mad 740), which held that when an order for dismissal for default is set aside, the effect of the appellate order which declares the order of the trial court to be wrong is to restore the original application; and the trial court would have to proceed with it from the stage at which it had interrupted in by dismissing it for default. The court also relied on the decision in Veeraswami v. Ramanna (AIR 1935 Mad 365) (FB), which held that when an order dismissing a suit for default is set aside, the suit remains as it was on the day when it was dismissed and that all proceedings taken upto that date must be deemed to be in force when the order of dismissal was set aside.
Final Decision: The court allowed the Civil Miscellaneous Second Appeal, setting aside the judgments and decrees of the courts below. The appellant was awarded costs in the High Court and the lower appellate court.
( 1 ) THIS Civil Miscellaneous Second Appeal arises out of execution proceedings in respect of a decree obtained more than 21 years ago. On 8-12-52 one Appala Naidu obtained a decree against one Raparthi Lakshmina-singarao for money. The present respondents are his legal representatives.
( 2 ) THE plaintiff (decree-holder) filed E. P. No. 44 of 1953 for sale and attachment of immovable properties of the judgment-debtor. Attachment and sale were ordered. On 24-3-1954 E. P. No. 44 of 1953 was dismissed, as the sale had to be stopped for want of bidders. In dismissing the application the executing court directed the attachment to continue for a period of six months. On 23-6-1954, the decree-holder filed again E. P. No. 162 of 1954, This E. P. also met with a similar fate. The sale had to be stopped for want of bidders and the E. P. was dismissed. Attachment was ordered to continue for six months. The decree in the meanwhile came to be transferred to the present appellant. He filed E. P. No. 379 of 1956. The property was again attached at the instance of the transferee decree-holder. On 3-12-1956 the transfer of the decree in favour of the appellant was recognised. On 17-1-1957 attachment of the properties was ordered. On 9-8-1957 E. P. 379 of 1956 was dismissed with a direction that the attachment should subsist. The dismissal was made by reason of the fact of the pendency of the insolvency proceedings against the judgment-debtor. Unnumbered E. P.-- of 1964 and E. A. No. 424 of 1964 were filed by the transferee decree-holder to exclude the time taken by the insolvency proceedings and continue execution proceedings On 6-7- 1965 E. A. No. 424 of 1964 was allowed by the Sub-Court Visakapatnam. The unnumbered E. P. also was numbered as E. P. No. 207 of 1965. As by that time, the judgment-debtor died in the execution petition, there was a prayer to add the legal representatives of the deceased judgment-debtor and also order attachment and sale of the properties. On 7-10- 1966 the Sub-Court. Visakhapatnam, ordered the properties to be attached by 28-11-1966. The attachment was effected and further steps were ordered thereon. On 24-10-1968 the E. P. was dismissed for the default of the transferee decree-holder. The decree-holder thereupon filed E. A. No. 642/1968 for restoration of the E. P. dismissed for default. On 7-12-1968 E. P. 20v of 1965 was restored. Subsequently there was a change of jurisdiction in respect of the properties attached. The High Court in C. R. P. No. 1410 of 1989 had directed that the execution proceedings from the Visakhapatnam be transferred to the Vizianagaram Court. In Vizianagaram, the transferred E. P. was numbered as E. P. No. 22 of 1971. Even when the terms of the sale of the properties were about to be settled, the judgment-debtors filed a memo objecting to the sale on the ground that the earlier E. P. No. 207 of 1965 was dismissed for default of the decree-holder in the Visakhapatnam Court and after it was restored, there was no attachment again made and that therefore the sale proceedings could not be ordered. The contention was when E. P. No. 207 of 1965 was dismissed for the default of the decree-holder the attachment had also ceased and that the restoration of the execution petition did not have the effect of restoring the attachment also. The contention of the judgment-debtors had found favour with the Subordinate Judge, Vizianagaram. He was of the view that when the Execution Petition which was dismissed for default was restored, it could not be presumed that the attachment also revived particularly when the Execution Petition was dismissed for default of the decree-holder and the attachment had ceased. He, therefore, ordered a fresh attachment.
( 3 ) THE aggrieved transferee decree-holder had preferred an appeal to the Court of the District Judge, Visakhapatnam. It was noticed by the learned Judge, that even by the date the attachment was ordered at the instance of the trans
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