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Report No. 27

Order XXI, rule 57

Where an application for execution is dismissed either by reason of the decree-holder's default or otherwise, the question arises whether an attachment already effected ceases or not. At present, the case where the decree-holder's default entails dismissal of the application is covered, but other cases are not. (In the former case, the cessation of the attachment is, at present, compulsory.) Local Amendments1 to the rule seek to impose an obligation on the court to direct in each case whether the attachment is to be regarded as continuing or not. This is intended to avoid doubts which are felt sometimes as to whether the dismissal was in fact for "default"2. The Calcutta and Bombay Amendments are the most elaborate.3 It is however, considered unnecessary to adopt these amendments; it is felt that where the execution application is dismissed (for default), the attachment must cease.

1. Cf. the Amendments made by High Courts of Calcutta, Madras, Nagpur, Patna, etc.

2. See Civil Justice Committee (1925) Report, p. 409, para. 22.

3. As to Calcutta Amendment, see Pashupati v. Deba, AIR 1951 SC 447. As to Madras Amendment, see Subramaniam v. Sundaram, AIR 1963 Mad 217.

Order XXI, rule 57 and attachment before judgment

The question whether the provisions of Order XXI, rule 57 apply to an attachment before a judgment, is not free from doubt.

Order XXI, rule 57 provides that where property has been attached in execution of a decree, but because of the decree-holder's default the court is unable to proceed further with the execution application, it can dismiss the application, in which case "the attachment shall cease". There is a conflict of decisions on the question whether this rule applies to attachment before judgment. In view of the words "attached in execution of a decree", it has been move his property, etc., with a view to defeating, etc., execution application for default does not put an end to the attachment before judgment1. It is argued in support of this view, that attachment before judgment is effected only if the court is satisfied that the defendant intends to remove his property etc., with a view to defeating, etc., execution hence it stands on different footing from attachments after judgment2. On the other hand, some High Courts have held the rule to be applicable to property attached before judgment-at least where the attachment has been followed by an application after the decree for bringing the property to sale3.

A general rule applying provisions of the Code (applicable to attachment made in execution) to attachments before a judgment, is now proposed4. That will resolve this conflict.

1. Bohra Akhey Ram v. Basant, ILR 46 All 894: AIR 1924 All 860, approved in Abdul Hamid v. Asghari Begum, ILR (1953) 1 All 654: AIR 1953 All 173 (FB); Shibnath Singh v. Shaikh Saberuddin, ILR 56 Cal 416: AIR 1929 Cal 465, followed in Ayezali v. Mahanandabarui, AIR 1949 Cal 320 (Das Gupta J.).

2. See the exhaustive review case-law in Dattatraya v. Rambhaba, AIR 1962 Born 236 (238, 239, 240); paras. 8-16 (holding that rule 57 does not apply to attachment before judgment) (Patel and Abhyankar

3. Venkata Rao v. Surya Rao, ILR 1950 Mad 2: AIR 1950 Mad 39; Meyyappa v. Chidambaram, ILR 47 Mad 483: AIR 1924 Mad 484 (FB); Hari v. Shrinivas, ILR 55 Born 693: AIR 1931 Born 550. (Madgavkar & Murphy 11.) (held to be obiter in AIR 2 Born 236).

4. See Order 38, rule 11A (proposed).

Code of Civil Procedure, 1908 Back

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