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Bombay High CourtIndian Cases

Ramchandra Kashinath Belsare vs Vasant Kashinath Belsare And Anr. on 26 November 1991

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Bombay High Court
Ramchandra Kashinath Belsare vs Vasant Kashinath Belsare And Anr. on 26 November, 1991
Equivalent citations: 1992(2)BOMCR486

M.F. Saldanha, J.

1. An interesting or rather novel interpretation to the provisions of Order XXI, Rule 57 of the Code of Civil Procedure was canvassed in this proceeding. The dispute centres around the short question as to whether or not an order of attachment in relation to property continues up to the period of limitation or whether, that order, if it is not vacated by order of a Court continues indefinitely and consequently confers on the decree holder the right to execute the decree at a subsequent point of time. A few dates are material for this purpose.

2. Pursuant to the filing of Civil Suit NO. 397 of 1959, which was a partnership dispute for dissolution and accounts, the trial Court passed a final decree on 31.7.1964 which was signed by the Judge on the same date. It needs to be mentioned that the stamp paper was not furnished for, as long as, four years, and that consequently, the decree was drawn up only some time in the year 1968. In the year 1973, the decree holder who is the present petitioner before me filed an application for execution. Certain proceedings such as the initial notices etc. continued until 30-1-1975, when the decree holder and his pleader were absent and it was found that the process fee for the sale warrant and proclamation had not been paid in time. The Court, therefore, passed an order stating that the darkhast is disposed of as infructuous. The last sentence of the order is: ” Attachment to be continued, costs on judgment debtor.” Thereafter, neither of the parties filed any application in respect of this darkhast until Darkhast No. 41 of 1977 was filed by the decree-holder before the trial Court. This was opposed by the present respondents on the ground that it was barred by limitation in so far as the original decree which was passed on 31-7-1964 was more than 12 years old on the date of filing of the present darkhast. The trial Court, after hearing the parties, passed an order on 11-2-1981, upholding the plea of limitation and it is this order that is challenged on certain points of law by the decree-holder through the present petition.

3. The first submission canvassed by Mr. Hushing, learned Counsel appearing on behalf of the petitioner is to the effect that admittedly, the trial Court had continued the order of attachment even after 30-1-1975 when it disposed of the previous execution proceeding. Mr. Hushing’s submission is that the proceedings were, therefore, not finally concluded and he drew support from the fact that the judgment debtor did not approach either the trial Court or the appeal Court and got that order vacted. He contends, therefore, that the subsequent application filed by him viz., the present one is for all intends and purposes, a revival or extension of the earlier proceeding. As regards the last part of the argument, I need dispose of it forthwith in so far as admittedly, the present proceeding was a fresh application for execution and was not an application for restoration of the earlier proceedings. Neither of the parties nor the trial Court treated it as such and, therefore, there can be no question of advancing the submission that the present application should be treated as one for restoration.

4. The provision of Order XXI, Rule 57 of the Code of Civil Procedure on which Mr. Hushing draws support as per the Bombay Amendment read as follows:

“Where any property has been attached in execution of a decree and the Court for any reason passes an order dismissing the execution application, the Court shall direct whether the attachment shall continue or cease. If the Court omits to make any such direction, the attachment shall be deemed to have ceased to exit.
5. Mr. Hushing’s main plank of argument is that it is incumbent upon the Court to direct as to whether or not the attachment should continue after disposal of the proceeding. He contends that if no such order is made, then, the section very clearly specifies that the attachment shall continue until the appeal period is over or until the appeal Court passes orders in the matter. If, however, the Court does not omit to make an order or in other words, when the Court specifically states that the attachment shall continue, it is Mr. Hushing’s submission that the proceedings remain alive until such time as the order for attachment is vacated by a competent Court. The extension of his argument, therefore, is that it is perfectly valid for a decree-holder if the attachment is still alive to apply to apply for execution of the property at any future point of time during the pendency of that attachment.

6. As against this position, the submission advanced by Mr. Divekar is briefly to the effect that, in either case, according to him, the continuation of the attachment cannot go beyond the period of limitation. He submits that an order of attachment is an interim order which cannot continue beyond the life of the main proceedings and if for purposes of appeal alone, there is a deeming provision of law or the Court is invested with powers to continue interim orders, that by necessary implication, the interim orders can be of a duration which is co-extenso with the period for appeal.

7. The submission canvassed by Mr. Divekar deserves to be upheld for a slightly different reason. Undoubtedly, an order of execution is an interim measure that an executing Court is entitled to have resort to for purposes of securing a hold on the property in respect of which orders are liable to be a passed in the proceedings. One needs to take into account the fact that where an executing Court dismisses and application for execution for whatever reason, it is quite clear that in the opinion of the presiding authority of that Court, there is no ground for executing the decree that has been presented to it. In these circumstances, the entire purpose of having attached the property is automatically extinguished or stands frustrated. One needs to take into account, however, the possibility of an error being committed by the Court in the first instance, because, these orders are always appealable. To that limited extent, the legislature, particularly through the Bombay amendment, has invested the executing Court with the authority even though it is no longer seized of the matter, to continue the attachment until the period of appeal is over in order to enable the aggrieved party to obtain requisite orders from the appeal Court obviously for the reason that such a aggreived party to obtain requisite orders form the appeal Court obviously for the reason that such a remedy should not be frustrated by the judgment debtor disposing of the property in the meanwhile. This can be the only limited purpose for which the Court is invested with the power of extending the period of attachment. Where a Court passes an order that the attachment is to continue, it is quite implicit that the limited purpose of passing that order is still to enable the aggrieved party, within the period prescribed for appeal if the party so desires, to obtain appropriate order from the appeal Court or to get the order corrected. In the present instance where the application appears to have been dismissed not on merits but for default, it was quite obvious that the intention of the learned Judge was that reasonable time be given to the decree holder, if he so desires, to get the proceedings restored and the Court intended, for that limited period, that the attachment should continue so that the decree holders remedy is not frustrated. Admittedly, no such application for restoration was made. Admittedly also, no appeal was filed against the order of dismissal which became final. In these circumstances, the submission advanced by Mr. Hushing, learned Counsel appearing on behalf of the petitioner is fallacious to the extent that the very premise on which he proceeds viz., that the order of attachment continued indefinitely and that it was in existence, in the year 1977 when the present darkhast was filed by him, is rendered incorrect in law and is. therefore untenable. To that extent, the trial Court was perfectly right in upholding the contention that Darkhast No. 41 of 1977 was barred by limitation and, therefore, could not be proceeded with.

8. As regards the second submission canvassed by Mr. Hushing, one needs to take into account the fact that, admittedly, the decree was passed on 31-7-1964. It is the decree holder who took 4 years to get the decree drawn-up. The decree-holder contended by virtue of the fact that the decree did bear the date of the year 1968 when the present Darkhast No. 41 of 1971 was instituted, that 12 years have, in that event, not elapsed and that it was, therefore, within the period of limitation, Mr. Hushing submits, that the trial Court was, therefore, in error in having upheld the plea of limitation because it is the latter date viz., the year 1968 and not 1964, which is the material date. This plea has been rejected by the trial Court which has placed reliance on two decisions viz., (A.I.R. 1943, Madras, page 650), and (A.I.R 1961, Mysore, page 172), in both of which cases, the respective High Courts have very clearly enunciated the principle that it is the original date of the passing of the decree which is material and not the date on which it came to be drawn-up. This, in fact, is the correct position in law and the submission canvassed by Mr. Hushing cannot be upheld. The present case is a classic illustration of the various procedural delays that could have arisen and, therefore, in such a situation the strict provisions of the law of limitation cannot either be by passed or given a go-by. Under these circumstances, it is impossible to uphold the contention that it is the date when the decree is drawn-up which is material and not the date of the passing of the decree.

9. In this view of the matter, to my mind, no interference is called for as far as the impugned order is concerned. The petition, therefore, fails. Rule is discharged. In the circumstances of the case, there shall be no order as to costs.