Dismissal of an execution petition for default under O. 21, R. 57, C.P.C. requires a clear finding of default on the part of the decree-holder, and the mere use of words like "closed, dismissed, or struck off" does not necessarily indicate default.

ORDER :- The plaintiff in O.S. No. 2042 of 1954 on the file of the City Civil Court, Madras is the petitioner. This civil revision petition arises out of an order for rateable distribution, passed amongst the various decreeholders who had obtained decrees against one Vedavalli Ammal.

The petitioner has impleaded the judgment debtors as well as the rival decree-holders in this petition. The plaintiff had obtained a decree in O.S. No. 2042 of 1954 on the basis of a promissory note executed by Vedavalli Ammal in renewal of earlier debts incurred in connection with the marriage of her daughter, Rukmani. To that suit Vedavalli and her four daughters were made parties.

In due course the plaintiff obtained a money decree and in execution of that decree he filed K.P. No. 661 of 1955 on 4-10-1955 for attaching the equity of redemption in certain properties which belonged to the judgment debtors, Attachment was ordered on 23-10-55. In the meantime the mortgagee in respect of those properties filed O.S. No. 1699 of 1954, obtained a decree and brought the properties to sale. Vedavalli Ammal and her daughters were made party defendants to this suit.

The properties were sold in execution of the mortgage decree and after satisfying the claim of the mortgagee decree-holder there was a surplus amount of Rs. 2343-5-6 deposited into court. Various creditors of Vadavalli Ammal applied for execution against her before the properties were sold under the mortgage decree in O.S. No. 1699 of 1954. The present petitioners application E.P. No. 661 of 1955 came up for orders on 5-12-1955 when it was dismissed as not pressed.

But the learned Judge directed that attachment should continue for six months. The petitioner then filed E.P. No. 1151 of 1956 on 31-10-1956 to attach the surplus amount in court deposit but as that application was filed after the receipt of the assets by the court it cannot avail the petitioner to a claim in the rateable distribution of the surplus amount.

The petitioner, therefore, relied upon E.P. No. 661 of 1955 which he claimed as pending all along as it was not dismissed for any default on the part of the decree-holder. The learned Assistant Judge cum Registrar, City Civil Court, rejected the claim of the petitioner on the ground that E.P. No. 661 of 1955 was dismissed prior to the receipt of the assets by court and that, therefore, the petitioner cannot claim any share in the distribution of the assets. The petitioner has preferred the present civil revision petition against the order of the learned Assistant Judge, City Civil Court.

2. A preliminary objection was taken on behalf of the respondents that when the petitioner has got an alternative remedy by way of suit this court should not interfere in revision. I overruled this objection having regard to the fact that it would involve great hardship on the petitioner if he were directed to file a suit to decide the simple matter in dispute.

3. Mr. A. Narasimhachariar learned counsel for the petitioner contended that E.P. No. 6611 of 1955 should be deemed to be pending and that, therefore, the petitioner was entitled to claim a share in the distribution of the assets of the judgment debtors. He also submitted that the decree in favour of the petitioner was on the basis of a debt binding on the estate of Vedavalli Animals husband, that the decrees obtained by the other creditors of Vedavalli Ammal would not at all be binding on the estate and that therefore the petitioner was entitled to a preferential claim.

4. As regards the first contention raised by the learned counsel I sent for the original petition, E.P. No. 661 of 1955. The order on it passed on 5-12-1955 reads thus : "E.P. dismissed as not pressed. Attachment to continue for six months from today."The argument on the side of the respondents is that the execution petition of the petitioner having been dismissed as not pressed should be taken as dismissal of the petition for default and therefore it could not be consider