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PETITIONER: NANCY JOHN LYNDON

       Vs.

RESPONDENT: PRABHATI LAL CHOWDHURY & ORS.

DATE OF JUDGMENT19/08/1987

BENCH: KANIA, M.H. BENCH: KANIA, M.H. REDDY, O. CHINNAPPA (J) SHETTY, K.J. (J)

CITATION:  1987 AIR 2061            1987 SCR  (3)1038  1987 SCC  (4)  78        JT 1987 (3)   366  1987 SCALE  (2)413

ACT:     Civil Procedure Code. 1908: Section 64 and Order 21 Rule 57Attachment  order--Execution  petition or  suit  in  which attachment  ordered dismissed--Restoration of such  proceed- ings--Whether  attachment  revived--Alienation  of  attached property--Whether affected.

HEADNOTE:     The  appellant  filed a petition for  execution  of  the money  decree  obtained  by her in High  Court  against  the judgment-debtor  and attachment was levied in  execution  on open land and a portion of the premises in question  belong- ing  to  the judgment-debtor.  Subsequently,  the  judgment- debtor sold a portion of the attached property. The purchas- er  in turn, sold a portion thereof to the respondents.  The aforesaid  execution petition was dismissed for default  but later on an application by the appellant, the said Execution Case was restored, and the said property was again attached, and a proclamation for sale of the said property was  issued under  Order 21 Rule 66 of the Code of Civil Procedure.  The respondents’ petition under Order 21, Rule 58 of C.P.C.  for releasing  the  property purchased by the  respondents  from attachment was dismissed. The High Court allowed the appeal.     In  appeal to this Court, it was urged on behalf of  the appellant  that in view of the provisions of Section  64  of the Code of Civil procedure, the sale of the property by the judgment debtor to the purchaser and the sale thereafter  by him to the respondents, which were both effected during  the subsistence  of  the attachment, were void  as  against  the appellant decree-holder, and although the attachment  ceased on  the  dismissal of the Title Execution Case,  on  May  9, 1972, it was revived by restoration of the case. Allowing the appeal, this Court,     HELD:  An order of restoration of a suit  dismissed  for default would certainly restore or revive the attachment for the period during which it was in subsistence, namely, prior to  the  dismissal of the suit or execution  application.  [ 1043D]      1039     In  the  present  case both transactions,  sale  by  the

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judgment-debtor and subsequent sale by the purchaser to  the respondents,  were  effected during the subsistence  of  the attachment and before the Title Execution Case was dismissed for default. [1043C]     The  Division  Bench of the High Court was in  error  in taking the view that by reason of the dismissal of the  said Title Execution Case, the attachment came to an end and  the order  of restoration of the said case would not affect  any alienations  made  before  the  restoration,  although  such alienations  might have been made during the subsistence  of the attachment. [1044C]     Sushila  Bala Dasi v. Guest Keen Williams  Ltd.,  I.L.R. 1949  Vol.  1 Calcutta, p. 177 Annapuma Patrani  &  Ors.  v. Lakshmana Kara & Anr., A.I.R. 1950, Madras, p. 740;  Pradyut Natwarlal  Shah v. Suryakant H. Sangani & Ors., A.I.R.  1979 Bombay, p. 166; Tavvala Veeraswami v. Pulim Ramanna &  Ors., A.I.R. 1935 Madras, p. 365 and Patringa koer v.  Madhavanand Ram  &  Ors., Calcutta Law Journal, 1911, Vol.  14  p.  476, referred to.

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 3535  of 1982.     From  the  Judgment and Order dated 16.3.  1982  of  the Calcutta High Court in F.M.A No. 282 of 1981 & C.R. No. 3842 (m) of 1980.     T.S.  Krishnamurthy Iyer, G.L. Sanghi,  G.S.  Chatterjee and D.P. Mukherjee for the Appellant.     L.N.  Sinha, M.P. Jha, K.C. Mittal and A.K.  Chopra  for the Respondents. The Judgment of the Court was delivered by     KANIA,  J. This is an appeal directed against the  judg- ment  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 the  High  Court  at Calcutta  against  the judgment debtor Maharaj  Kumar  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 1040 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  to  11 Kathas  to one Bharat Shamshere Jung Bahadur Rana.  On  29th March,  1972  Bharat  Shamshere ,lung Bahadur  Rana  sold  a portion of the said land admeasuring a little over 9  Kathas (referred to hereinafter as "the said property") to Prabhat- ilal  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 dismisssed  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  Sep- tember, 1975 the said property was again attached.  Thereaf- ter. a proclamation for sale of the said property was issued under  Order 21 Rule 66 of the Code of Civil Procedure.  The respondents Prabhatilal Chowdhary & Others filed a  petition

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under  Order  21 Rule 58 of 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 and Others  was  dis- missed. 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.     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  dis- missal  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 Section 64  of  the Code  of Civil Procedure, the sale of the said  property  by the  judgment debtor to Bharat Shamshere Jung  Bahadur  Rana and the sale of the same by the Bharat Shamshere Jung  Baha- dur  Rana  to the respondent are both void  as  against  the appellant decree holder. Section 64 of the Code of Civil Procedure runs as follows:- "Where an attachment has been made, any private transfer    1041 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  attach- ment." There  is  an  Explanation to this Section, but  it  is  not material for our purposes.     Order  21 Rule 57 as it stood prior to its amendment  in 1976 and as amended by the Calcutta High Court  as follows:-               "Where  any  property  has  been  attached  in               execution  of  a decree but by reason  of  the               decree-holder’s default the Court is unable to               proceed  further  with  the  application   for               execution, it shall either dismiss the  appli-               cation  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."     The  words "unless the Court shall make an order to  the contrary"  have been added by way of amendment to  the  said Rule made by the Calcutta High Court.     In  view of the plain wording of the aforesaid Rule,  it is  clear that when the aforesaid Title Execution  Suit  was dismissed  for default, the attachment levied ceased  as  no order to continue that attachment was made by the Court. The question as to what is the effect of the restoration of  the said Title Execution Suit, that is, whether the said  resto- ration would restore the original attachment and, if so,  to what  extent.  In this connection, it has been held  by  the Calcutta  High  Court  that where  an  order  for  releasing property from attachment is set aside on appeal, the  effect is to make the property still subject to the attachment  and to  restore the state of things which had been disturbed  by the  order  of release. It makes no difference  whether  the order for releasing the attachment under Order 21 Rule 63 of the Code of Civil Procedure is passed in appeal or revision. (See Sushila Bala Dasi v. Guest Keen Williams, Ltd.,  I.L.R. 1949 Vol. 1 Calcutta, p. 177.

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   A  Division Bench of the Madras High Court in  Annapurna Patrani  & Ors. v. Lakshmana Kara & Anr., A.I.R.  1950,  Ma- dras,  p.  740 has held that where in  execution  of  decree property is attached 1042 but the petition for execution is dismissed for default  and on  appeal the order of dismissal for default is set  aside, the  effect of the appellate order is to restore  the  order attaching property and the trial Court would have to proceed with  the execution application from the stage at  which  it had interrupted it by dismissing it for default. The  appel- late  order  restoring attachment would relate back  to  the date  when  the attachment was first made and  would  render invalid any alienation in the interim period. A similar view has been taken by a learned Single Judge of the Bombay  High Court  in  Pradyut Natwarlal Shah v. SuryakantN.  Sangani  & Ors., A.I.R. 1979 Bombay, p. 166.     However,  in  the present case the  restoration  of  the Title Execution Case was not made on an appeal or  revision, whereby  order of dismissing the said suit for  default  was set aside, but the said suit has been restored on an  appli- cation  made for restoration. Such an order for  restoration cannot  be  equated  with an order passed on  appeal  or  in 2revision  setting aside the dismissal. In this case we  are not  called upon to consider what is the effect of an  order of  dismissing the Execution Application for  default  being set  aside on appeal or revision, and we do not  propose  to express  any opinion in that connection. In a case which  is more  relevant for determination of the question before  us, namely,  Tavvala Veeraswami v. Pulim Ram anna & Ors.,  A.I.R 1935 Madras, p. 365 which was decided by a full Bench of the Madras High Court an order dismissing a suit for default was set  aside on an application for that purpose. It  was  held that  where  an order dismissing a suit for default  is  set aside  on an application for that purpose, the suit  remains as it was on the day when it was dismissed and all  proceed- ings  taken up upto that date must be deemed to be in  force when the dismissal is set aside and all interlocutory orders will  be  revived  on the setting aside  of  the  dismissal. Similarly, an order for attachment of property will also  be revived.  In  that case an attachment  before  judgment  was raised  on security being furnished. The suit in  which  the attachment  was  levied was dismissed for default,  but  was restored on an application made for that purpose and decreed and the decreeholder sought to enforce the security bond. It was held that on the restoration of the suit, all  ancillary orders  were  restored without any further order,  and  that therefore,  the security bond given for the raising  of  at- tachment  before judgment was also restored and  the  decree holder  was  entitled to enforce the security bond.  It  was observed  by Beasley C.J., who delivered the  judgment  with which other learned Judges concurred, as follows:-               "It  does not seem to be reasonable  that  the               plaintiff in a                1043               suit who has got an attachment before judgment               should  have again, after the  restoration  of               the  suit after its dismissal for default,  to               apply to the Court for a fresh attachment  and               that having done so, the defendant should have               to apply to raise the attachment by  producing               a surety or sureties. The commonsense view  of               the matter is that all ancillary orders should               be restored on the suit’s restoration  without               any further orders."

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   In  the  present  case both, the sale  by  the  judgment debtor to Bharat Shamshere Jung Bahadur Rana and the sale by Bharat  Shamshere Jung Bahadur Rana to the respondent,  were effected during the subsistence of the attachment and before the  Title Execution Case was dismissed for default. In  our view,  even if a doubt were to be entertained as to  whether an  order for restoration of the suit or execution  applica- tion  would  have  the effect of  restoring  the  attachment retrospectively so as to affect alienations made during  the period  between dismissal of the suit or execution  applica- tion  and the order directing restoration, it is clear  that an  order of restoration would certainly restore  or  revive the  attachment for the period during which it was  in  sub- sistence,  namely,  prior to the dismissal of  the  suit  or execution application.     The  learned counsel for the respondent drew our  atten- tion  to the decision of the Division Bench of the  Calcutta High Court in the case of Patringa Koer v. Madhavanand Ram & Ors.,  Calcutta Law Journal, 1911, Vol. 14 p. 476  where  it was  held that a revival of execution proceedings  does  not operate as revival of the attachment so as to prejudice  the rights  of  strangers who have in the  interval  acquired  a title  to  the  property. The reversal  of  judicial  orders leaves  unaffected the rights of strangers, bona  fide  pur- chasers, whether under execution sale or under private sale, who  have acquired title on the assumption that such  orders were valid in law. A careful reading of this decision  shows it is of no assistance to the case of the respondent because the  judgment makes it clear that what was really  held  was that in the absence of statutory provisions to the contrary, the  court cannot cancel the order of dismissal for  default of an execution application with retrospective effect so  as to prejudice the title that might have been acquired in  the interval by a stranger, when the property was admittedly not in the custody of the Court. This decision might have helped the  respondents  if the alienations in  question  had  been effected  during the interval between the dismissal  of  the Title  Execution  Case  and its  restoration.  But,  in  the present case, the alienations were effected 1044 when the attachment was subsisting as we have already point- ed  out and hence this decision is of no assistance  to  the respondents. We are not called upon to consider as to wheth- er  the aforesaid decision lays down good law or as to  what would  have been the effect of the restoration of the  Title Execution Case had the alienations been effected during  the aforesaid interval and we do not propose to say anything  in this regard.     In  our  view, the Division Bench of the  Calcutta  High Court  was  in  error in taking the view,  in  the  judgment appealed  against,  that by reason of the dismissal  of  the said Title Execution Case, the attachment came to an end and the  order of restoration of the said case would not  affect any  alienation  made before the restoration  although  such alienations  might have been made during the subsistence  of the attachment.     We  may  mention  that our attention was  drawn  to  the amendment  of Rule 57 of Order 21 made by the Calcutta  High Court,  but in our view that amendment merely provides  that although  under  Rule 57 of Order 21  the  attachment  would cease  on an order dismissing the application for  execution it  is open to the Court to make an order to  the  contrary. which  would  mean  that the Court could make  an  order  to continue the attachment for some time. The amendment, howev- er, is of no relevance in the case before us.

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   In  the  result,  the appeal is  allowed,  the  impugned judgment  set aside and the order of First Subordinate  Jude at  Alipore in Misc. Case No. 8 of 1978 which was set  aside by  the Calcutta High Court restored. The  respondents  must pay to the appellant the cost of the appeal. N.P.V.                                                Appeal allowed. ?1045