Continuance of attachment whether proper.
Dismissal of execution petition.

E.P. No. 57 of 1968 m O.S. No. 296 of 1964 on the file of the District Munsif’s Court, Vellore, out of which the appeal arises was filed by the appellant herein for realising a sum of Rs. 2,133-70 the amount due to him from the respondent under the decree passed in the above suit on 24th June, 1964, and subsequent costs of execution by sale of the properties described in the schedule to the petition attached on 21st October, 1966 in E.P. No. 126 of 1966.

2. The material facts are shortly these: The appellant a wholesale dealer in vegetables in Vellore filed the suit in question against the respondent herein for recovery of Rs. 1,574.00 made up of (1) Rs. 1,338.63 the amount due from the respondent, a retail dealer, for the purchase of vegetables and (2) Rs. 235.36 due as interest at 12% per annum from 26th October, 1962, till the date of suit and obtained an ex parte decree on 24th June, 1964. The decree was subsequently transferred to the Sub-Court, Vellore for execution; and the appellant filed E.P. No. 78 of 1966 for realising the decree amount by attachment and sale of the respondent’s properties. Because of the misdescription of the village in the schedule, attachment could not be effected and the E.P. was consequently dismissed on 24th August, 1966. Thereafter the appellant filed a second E.P. No. 126 of 1966 on 29th September, 1966, for attachment and sale of the same properties, correctly describing the village as Vadapathimangalam. The respondent remained ex parte and the properties were attached on 7th December, 1966, and the terms of proclamation were settled on 2nd February, 1967.

3. The respondent subsequently filed E.A. No. 95 of 1967 for setting aside the ex parte order in E.P. No. 126 of 1966 and, on the order being set aside, he filed a counter affidavit contending that, soon after the decree was passed, he approached the appellant and requested the latter to accept payment of the decree amount in easy instalments and that the appellant agreed that the decree amount should be shown as a debit in the accounts, that the respondent could continue to have dealings with him and that the decree thus became fully satisfied by being merged in the running account and was therefore not executable. The respondent called upon the appellant to produce his accounts; but as the latter did not produce the same, the executing Court passed an order on nth January, 1968, dismissing the E. P. but directing attachment to continue. Subsequently the appellant filed E.P. No. 57 of 1968 out of which the appeal arises on 31st March, 1968; and the respondent raised the same objections to the enforceability of the decree which he had raised in the earlier E.A.; and an additional objection is raised that, as E. P. No. 126 of 1966 was dismissed for default of the appellant, the attachment ceased to have effect and that the present E.P. without a prayer for fresh attachment was not maintainable.

4. The learned Subordinate Judge who heard the execution petition has held that the respondent’s version in Court that the appellant gave up his claim under the decree and told the respondent that he need not pay the decree amount at all and also agreed to report full satisfaction to the trial Court, is at variance with the respondent’s contention as set out in his counter statement and is absolutely false and that, in any event, as the adjustment spoken to has not been certified before the executing Court, could not be pleaded in defence. The learned Judge has also held that the dismissal of the execution petition for non-production of the accounts by the appellant cannot be construed as a dismissal due to the default of the appellant to prosecute the same, that the production of accounts was not necessary for the prosecution of the execution petition and that the executing Court could have gone on with the execution application without the production by the appellant of his accounts and could have drawn an adverse inference from the non-pr