C.S. Mani(Dead) By Lr vs B. Chinnasamy Naidu(Dead)Through Lrs

3. After the moratorium period ended, the appellant initiated execution proceedings afresh (EP No.276 of 1980). As the suit property had already been attached on 29.12.1974 in the earlier execution proceedings, and that attachment continued even during the moratorium period, the appellant did not seek any fresh attachment. In the said execution proceedings the attached suit property was brought to sale. At the court auction sale held on 6.6.1984, the appellant purchased the suit property. The auction sale in favour of 3 appellant was confirmed on 30.7.1985 and a sale certificate was issued to him. According to appellant possession of the suit property was also delivered to him through court on 10.9.1985.

4. The judgment debtor Mokshammal filed an application under section 47 of the Code of Civil Procedure (`Code' for short) to set aside the sale. The sale was set aside on 10.1.1986. However the appeal filed by the appellant against the said order was allowed by the Subordinate Judge and by order dated 15.3.1993 the order of the executing court dated 10.1.1986 setting aside the sale was reversed. The revision petition filed by Mokshammal against the said order was dismissed on 5.10.1993. Thus the attempts by Mokshammal to get the sale set aside failed and the auction sale attained finality.

The certified copy of the order dated 15.2.1975 obtained by the appellant (prior to 19.7.1975 when the amendment was made) read: "Defendant is an agriculturist - E.P. closed - attachment to continue." The said order dated 15.2.1975 was corrected twenty years later on 19.7.1995 by adding the words "for six months" at the end, thereby converting the attachment which was to continue without any specific time limit, as one to end on the expiry of six months. The said correction was by way of an office note and without notice to the appellant. The appellant therefore filed a civil revision petition before the High Court challenging the amendment to the order dated 15.2.1975 made on 19.7.1995 by way of an office note, converting the words "attachment to continue" to "attachment to continue for 6 months". 15

18. The High Court, while allowing the second appeal of the respondent by the impugned judgment, has read the said notice as an "order" reiterating the amendment made on 19.7.1995. The High Court has therefore proceeded on the basis that by order dated 15.2.1975, the executing court had closed the execution proceedings in view of the enactment of the Debt Relief Act and continued the attachment only for six months and thereafter there was no attachment and therefore the sales by Mokshammal on 17.2.1978 and 18.12.1980 were valid and the court auction sale in favour of the appellant was invalid. The High Court clearly erred. Firstly when the Debt Relief Act 17 had clearly indicated that the attachment will continue during the period when the execution proceedings were stayed, it is ununderstandable how the executing court could make an order that the attachment will continue only for six months. Secondly when the order dated 15.2.1975 stated "attachment to continue", it is ununderstandable how the said order could have been amended after 20 years without notice to the plaintiff-decree holder on the basis of some private clarification letter dated 29.10.1985 allegedly written by the District Munsif stating that the order made on 15.2.1975 was not "attachment to continue" but "attachment to continue for six months". Thirdly when said amendment order dated 19.7.1995 amending the order dated 15.2.1975 was set aside by the High Court by order dated 22.12.1995 with a direction for fresh disposal in accordance with law after notice to the parties, it is ununderstandable how the learned District Munsiff, instead of complying with the order of the High Court, could have issued a notice dated 18.9.1996 to both counsel stating that the said correction adding the words "for six months" was required to be made in the certified copies, if any obtained by the Advocates, and that both side Advocates should produce the certified copies in EP No. 466 of 1974 for making the correction. The notice dated 18.9.1996, by no stretch of imagination could be construed as an order after hearing as directed by the High Court by its order dated 18 22.12.1995. The notice dated 18.9.1996 was apparently issued under an erroneous impression that the High Court had accepted the correction, but had directed making of the correction in the certified copies after notice to the parties. The amendment made pursuant to the office note dated 19.7.1995 having been set aside by order dated 22.12.1995, and no further order having been made thereafter by the executing court, the unauthorized addition of the words "for six months" in the order dated 15.2.1975 have to be ignored and excluded.

11. It is clear from Rule 57 of Order 21 of the Code that where the court `dismisses' the application for execution of the decree, the attachment effected in execution, shall cease unless the court indicates that the attachment shall continue. But where the execution petition is adjourned `sine die' or closed on account of any moratorium or stay of the execution under a statute, or by an order of stay by any court, there is no "dismissal" of the execution application. Similarly where the execution application is closed without any specific cause, apparently for purposes of statistical disposal, there is no "dismissal" of the execution application. An execution application is `dismissed' when (i) the execution is dismissed as a consequence of the decree being found to be null and void or inexecutable (as contrasted from any temporary eclipse of the decree); or (ii) the execution is dismissed on the ground of any default on the part of the decree-holder.

16. The High Court allowed the said revision petition by order dated 22.12.1995. It found that the correction had been made after 20 years on 19.7.1995, allegedly after obtaining a clarification from the Presiding Officer; and that it was not known how and on what basis such a clarification could be obtained after 20 years and on what authority the person who was the Presiding Officer on 15.2.1975 could issue any clarification after the order, and how the order could be amended after 20 years, that too without giving an opportunity to the appellant to oppose the same. The court therefore allowed the revision petition with the following observations and directions :

conclusion

20. In view of the above this appeal is allowed and the order of the High Court is set aside and the order of the first appellate court confirming the dismissal of the respondent's suit stands restored and confirmed.