IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH : HYDERABAD FRIDAY, THE EIGHTH (8TH) DAY OF OCTOBER, TWO THOUSAND AND TEN Present: Hon’ble Sri Justice G.V.SEETHAPATHY C.R.P.No.1681 of 2010 Between: Aravalli Subbarao … Revision Petitioner/JDr And: Gorajana Padmavathi … Respondent/DHr THE HON’BLE SRI JUSTICE G.V.SEETHAPATHY C.R.P.No.1681 of 2010 JUDGMENT: This revision is directed against the order dated 08.02.2010 in E. P. No.107 of 2006 in OS No.107 of 2004 on the file of the Principal Junior Civil Judge, Parvathipuram, Vizianagaram district, wherein, the said execution petition filed by the respondent herein- DHr, was allowed permitting the DHr to proceed further in the matter and directing to post the matter for settlement of terms. 2. Heard the learned counsel for the revision petitioner/JDr and the learned counsel for the respondent/DHr. Perused the record. 3. The respondent herein obtained a decree against the petitioner/JDr for recovery of Rs.47,635/-. The respondent filed execution petition for realization of the said amount together with costs in a sum of Rs.6,235/-, totaling Rs.53,870/- by sale of the property of the JDr, which was under attachment. The petitioner herein filed a counter to the execution petition inter-alia disputing the identity of the property and contending that there was no attachment over the said property mentioned in the E.P. schedule and further contending that the JDr has sold away the property long prior to attachment. It was also contended that the execution petition was dismissed for default and subsequently, it was restored, but there was no order for continuing attachment and therefore, the attachment effected earlier ceased on the moment the execution petition was dismissed and it was not revived with the restoration of the execution petition The learned Junior Civil Judge over-ruled the objections raised by the JDr holding that when the execution petition was restored, the attachment also revived. It was also held that the other objections raised by the JDr regarding the identity of the property and non-availability of the property on account of its alienation were considered earlier at the time of issuance of Rule 54 notice and over-ruled and the JDr cannot raise the self same objection once again. Accordingly the learned Junior Civil Judge directed the DHr to proceed further in the matter of execution. Aggrieved by the said order, the present revision is filed by the JDr. 4. Learned counsel for the petitioner/JDr would contend that with the dismissal of the execution petition for default and in the absence of any specific direction by the Court for continuance of the attachment, the attachment ceased to be existing and the DHr is not entitled to bring the property to sale. Learned counsel for the respondent/DHr on the other hand would contend that with the restoration of the execution petition by setting aside the default dismissal order, the attachment also got itself revived and hence, there is no legal impediment to proceed further in the execution petition. 5. It is not disputed that the execution petition schedule property was attached under Order XXI Rule 54 of CPC and subsequently the execution petition was dismissed for default on 03.07.2007 and the same was restored to file on 10.02.2009 on the application filed by the DHr. It is also not disputed that while passing the dismissal order on 03.07.2007, no specific direction was given by the Court ordering continuance of the attachment for any period. 6. Order XXI Rule 57 of CPC deals with the determination of the attachment, which reads as follows: (1) Where any property has been attached in execution of a decree and the Court, for any reason, passes an order dismissing the application for the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease. (2) If the Court omits to give such direction, the attachment shall be deemed to have ceased. 7. A perusal of the above provision, the language, which is clear and unambiguous, would show that when the Court passes an order, for any reason, dismissing the execution petition, the Court shall direct whether the attachment shall continue or cease. It shall also indicate the period for which the attachment shall continue and if the Court omits to give such direction, the attachment shall be deemed to have ceased. Prior to the amendment of CPC by Act 104 of 1976, earlier provision contained in Order XXI Rule 57 provides that when the Court dismisses the execution petition for the reason of default on the part of DHr, the attachment shall cease. The Court had no power while dismissing the execution petition for default to direct that the attachment shall continue. Under the amended provision, it is specifically provided that the Court shall direct whether the attachment shall continue or cease and shall also indicate the period of continuance of attachment or the date on which such attachment shall cease. It is further clarified under sub-rule (2) that if the Court omits to give such direction, the attachment shall be deemed to have ceased. 8. In the present case, admittedly, no such direction was issued by the Court while dismissing the execution petition for default on 03.07.2007, that the attachment shall subsists or continue for a particular period. Thus, by operation of Order XXI Rule 57 CPC as it stands now, the attachment over the execution petition schedule property shall be deemed to have ceased with the dismissal of the execution petition for default on 03.07.2007. 9. Learned counsel for the petitioner relied upon a decision in ‘Indira Devi Arya Vs. Bajrang Lal Khaitan[1]’, wherein, in similar circumstances, the apex Court held as follows: “The short question that arises for consideration is whether on the dismissal of the execution case, the attachment order also stood vacated and would not revive on the restoration of the execution case? Order 21, Rule 57 provides that where any property has been attached in execution of a decree and the Court for any reason passes an order dismissing the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease. Sub-rule (2) of Rule 57 further provides that if the Court omits to give such direction, the attachment shall be deemed to have been ceased. Order 38, Rule 11-A sub-rule (2) provides that an attachment made before judgment in a suit which is dismissed for default shall not be revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored. In the present case, we find that at the time when execution petition was dismissed for default, the executing Court did not pass any order extending the period of attachment. Therefore, after the restoration of the execution case, the order of attachment remained non-existent and could not have been automatically revived on the restoration of execution case. We are, therefore, of the view that in law earlier order of attachment, if not extend by the Court, stood vacated and would not revive on restoration of the execution case.” 10. The principles laid down in the above decision are squarely applicable to the facts of the present case. 11. Learned counsel for the respondent/DHr would invite attention to the decision in ‘Nancy John Lyndon vs. Prabhati Lal Chowdhury[2]’, wherein the apex Court was dealing with a case under earlier provision in Order XXI Rule 57 CPC as amended by the Calcutta High Court and prior to the amendment of CPC in 1976. In the above case, the apex Court was dealing with the alienation of the property effected during subsistence of the attachment but before the restoration of the execution petition which was earlier dismissed, it was held that the order of restoration 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. In the said case, the execution petition was dismissed for default on 09.05.1972 and it was restored on 16.09.1975 and the property was again attached. 12. In the above case, the Apex Court made a reference to the case in ‘Patringa Koer vs. Madhavanand Ram[3]’, wherein the Division Bench of Calcutta High Court held that ‘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’ and the apex Court held that the said decision was of no assistance to the case of the respondents and it was further observed that the 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. In that case the apex Court was dealing with the alienations effected when the attachment was subsisting. It was further observed that ‘we are not called upon to consider as to whether 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’. 13. In the said case, the attention of the Apex Court was invited to the amendment of Rule 57 of Order XXI of CPC made by Calcutta High Court, which amendment added the words ‘unless the Court shall make an order contrary to Rule 57 prior to its amendment in 1976’. The apex Court held that the said amendment made by Calcutta High Court 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 can make an order to continue attachment for some time. It was further observed that the said amendment, however, was of no relevance to the case on hand. The above decision was dealing with a case under Order 21 Rule 57 of CPC as it stood prior to amendment in 1976 and therefore, not applicable to the facts of the present case, which is governed by the amended provision in Order XXI Rule 57 of CPC, wherein, it is specified that the Court shall direct whether attachment shall continue or cease and shall also indicate the period of such continuance and sub-rule (2) specifically provides that, if the Court omits to give such direction, the attachment shall be deemed to have ceased. 14. In view of the principles laid down in ‘Indira Devi Arya’s case (first supra), which are squarely applicable to the facts of the present case, it must be held that in view of the absence of any direction from the Court regarding subsistence of the continuance of the attachment while dismissing the execution petition for default, the attachment effected does not automatically revive on the restoration of the execution petition. The earlier order of attachment, which was not extended by the Court, stood vacated with the dismissal of the execution petition, and it would not automatically revive on the restoration of the execution petition. As there is no valid attachment in existence over the petition schedule property, further proceedings in the execution petition for sale of the said property are not sustainable. 15. In the circumstances and for the reasons stated above, the impugned order directing continuance of further proceedings towards sale of the property is therefore, held liable to be set aside and it is accordingly set aside. It is however, open to the respondent/DHr to seek fresh attachment of the schedule property and proceed further in accordance with law for the realization of the amount due under the decree. 16. In the result, the civil revision petition is allowed accordingly, as stated above. No order as to costs. ___________________ G.V.SEETHAPATHY, J Date: 08.10.2010 bss [1] 2001 AIR (SCW) 466502 [2] (1987) 4 SCC 78 [3] (1911) 14 Cal LJ 476