Case: Kumar Pashupatinath Malia &amp; Another Vs. Deba Prosanna Mukherjee

an order of the third kind mentioned above. The three forms of order permissible under R. 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping. If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the trouble of amending R. 57 at all. The Court could by simply adjourning the proceedings automatically continue the attachment without any express direction in that behalf. The fact that the Court gave an express direction that the attachment should continue clearly indicates that the Court intended to make a final order of dismissal. Again, the heading of column 20 in Ex. F clearly indicates that only a final order is to be entered in that column. The fact that the order was entered in that column affords some justification for the conclusion that the Court made a final order of dismissal. That the claim case was automatically dropped is yet another indication that the execution case was at an end. The fact that the judgment debtor had paid the full costs of the execution case is also a feature which goes to show, to a certain extent at any rate if not decisively, that the execution proceeding was finally disposed of by the order. The following endorsement appears on the petition (Ex. 2 (a), dated 9-6-1939 :"Heard learned pleaders for the parties. They jointly ask me to cancel the attachment (existing by special order) in Money Ex. 118 of 1936 though that case was dismissed."This endorsement also clearly shows that the Court itself understood that the order that it made on 30-1-1937 was a final order of dismissal and that the attachment had been continued by a special order. On a consideration of all these matters I have not the least doubt in my mind that the order of 30-1-1937 was in form and in substance a final order of dismissal of the execution case No. 118 of 1936 and that the attachment was continued by a special order such as is contemplated and authorised by the amendment made by the Calcutta High Court in R. 57. Learned Advocate for the appellants contended that if the execution case came to an end the attachment could not be left hanging in the air. There is no substance in this argument. Ordinarily, an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fall with it. But R. 57, as amended, expressly empowers the Court to dismiss an execution application but at the same time to keep alive the attachment by a special order. That is what was done in this case. Here the attachment does not, to use the expression of the learned Advocate for the appellants, hang in the air. It rests upon the solid foundation of a special order which R. 57, as amended in terms authorises the Court to make. The continuance of the attachment, in the circumstances, needs no execution proceeding to support it. Take the case of an attachment before judgment. Under O. 38, R. 11 where after an order of attachment before judgment a decree is passed in favour of the plaintiff it is not necessary upon an application for execution of such a decree to apply for re-attachment of the property. It means that the attachment continues and the judgment-debtor cannot deal with the property to the disadvantage of the decree-holder. After the decree is passed, the attachment continues but nobody will say that although there has been no application for the execution of the decree at any time by the decree holder there is, nevertheless, an execution proceeding pending merely because the attachment continues. Here also the attachment subsists and rests only upon the terms of O. 38, R. 11 and without any proceeding. Such attachment cannot be called a proceeding in execution, for none was even initiated after the decree was passed. In my judgment, the order of 30-1-1931, was a final order which brought the execution Case No. 118 of 1936 to an end and the attachment continued, not because there was a pending execution proceeding but because a special order was made under O. 21, R. 51 as amended by the High Court.18. As to (ii).- Learned Advocate for the appellants then contended that the petition (Ex. 2a) dated 2- 6-1939 amounted to a proceeding in execution and as that was instituted and was pending after 1-1-1939 the proceedings came within the definition in S. 9 (22) of "a suit to which this Act applies." I do not think this argument is sound The petition (Ex. 2a) was not really an application at all. See Shri Prokash Singh v. The Allahabad Bank Ltd.33 Cal. W. N. 267 : A. I. R. (16) 1929 P. C.19. In substance, it was nothing but a certification by the decree-holder of the satisfaction of the decree. The mere fact that the document was in the form of a petition could not convert which was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement. It was purely an intimation given to the Court by the decree-holder that the decree had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow as a matter of course on full satisfaction of the decree being recorded. The order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled. In my judgment, that petition (Ex. 2a) was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in cls. (a) or (b) or (c) of S. 2 (22) of the Act.20.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is quite obvious that the Court made an order of the third kind mentioned above. The three forms of order permissible under R. 57 as amended by the High Court are quite distinct and independent of each other and there is no room for their overlapping. If the mere continuation of attachment will automatically convert an express order of dismissal of the execution application which is a final order into an order of adjournment which is not a final order then there was no point in the High Court taking the trouble of amending R. 57 at all. The Court could by simply adjourning the proceedings automatically continue the attachment without any express direction in that behalf. The fact that the Court gave an express direction that the attachment should continue clearly indicates that the Court intended to make a final order of dismissal. Again, the heading of column 20 in Ex. F clearly indicates that only a final order is to be entered in that column. The fact that the order was entered in that column affords some justification for the conclusion that the Court made a final order of dismissal. That the claim case was automatically dropped is yet another indication that the execution case was at an end. The fact that the judgment debtor had paid the full costs of the execution case is also a feature which goes to show, to a certain extent at any rate if not decisively, that the execution proceeding was finally disposed of by the order. The following endorsement appears on the petition (Ex. 2 (a), dated 9-6-1939learned pleaders for the parties. They jointly ask me to cancel the attachment (existing by special order) in Money Ex. 118 of 1936 though that case wasendorsement also clearly shows that the Court itself understood that the order that it made on 30-1-1937 was a final order of dismissal and that the attachment had been continued by a special order. On a consideration of all these matters I have not the least doubt in my mind that the order of 30-1-1937 was in form and in substance a final order of dismissal of the execution case No. 118 of 1936 and that the attachment was continued by a special order such as is contemplated and authorised by the amendment made by the Calcutta High Court in R.is no substance in this argument. Ordinarily, an attachment is supported by an execution case and if the execution case is simply dismissed the attachment must fall with it. But R. 57, as amended, expressly empowers the Court to dismiss an execution application but at the same time to keep alive the attachment by a special order. That is what was done in this case. Here the attachment does not, to use the expression of the learned Advocate for the appellants, hang in the air. It rests upon the solid foundation of a special order which R. 57, as amended in terms authorises the Court to make. The continuance of the attachment, in the circumstances, needs no execution proceeding to support it. Take the case of an attachment before judgment. Under O. 38, R. 11 where after an order of attachment before judgment a decree is passed in favour of the plaintiff it is not necessary upon an application for execution of such a decree to apply for re-attachment of the property. It means that the attachment continues and the judgment-debtor cannot deal with the property to the disadvantage of the decree-holder. After the decree is passed, the attachment continues but nobody will say that although there has been no application for the execution of the decree at any time by the decree holder there is, nevertheless, an execution proceeding pending merely because the attachment continues. Here also the attachment subsists and rests only upon the terms of O. 38, R. 11 and without any proceeding. Such attachment cannot be called a proceeding in execution, for none was even initiated after the decree was passed. In my judgment, the order of 30-1-1931, was a final order which brought the execution Case No. 118 of 1936 to an end and the attachment continued, not because there was a pending execution proceeding but because a special order was made under O. 21, R. 51 as amended by the High Court.In substance, it was nothing but a certification by the decree-holder of the satisfaction of the decree. The mere fact that the document was in the form of a petition could not convert which was really the usual certifying procedure into a proceeding in execution for recovery of a loan or for enforcement of any agreement. It was purely an intimation given to the Court by the decree-holder that the decree had been satisfied out of Court and the prayer for withdrawal of the attachment was merely consequential and would follow as a matter of course on full satisfaction of the decree being recorded. The order made on that petition also shows that the decree was recorded as adjusted and the attachment was cancelled. In my judgment, that petition (Ex. 2a) was not an application such as would initiate a proceeding in execution for any of the purposes mentioned in cls. (a) or (b) or (c) of S. 2 (22) of the Act.