Holding

An order restoring a suit or execution petition dismissed for default revives the attachment for the period it was in force before dismissal, rendering any alienation made during that period void under Section 64 of the CPC.

Summary

The appellant obtained a money decree against the judgment debtor and secured attachment of the debtor's land. While the attachment was in force, the debtor sold part of the land to a third party, who subsequently sold it to the respondents. The execution petition was dismissed for default, but was later restored on the appellant's application, and the attachment was re‑imposed. The respondents sought release of the property from attachment, but the High Court set aside the restoration and allowed the respondents. The Supreme Court held that restoration of a suit or execution petition dismissed for default revives the attachment for the period it previously existed, making any alienation made during that period void under Section 64 of the CPC. Consequently, the appeal was allowed, the High Court judgment set aside, and the attachment restored, with costs awarded to the appellant.

Issues considered

Does the restoration of an execution petition dismissed for default revive the earlier attachment retrospectively?
Are sales made during the subsistence of an attachment void under Section 64 of the CPC?
Does the amendment to Order 21 Rule 57 affect the effect of restoration on the attachment?
What is the impact of restoration on the rights of bona fide purchasers?

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 57, s. Order 21 Rule 58, s. Order 21 Rule 66, s. Section 64

Subjects

attachmentexecutionrestorationSection 64 CPCvoid saledefault dismissalcivil procedureproperty law

Judgment

A NANCY ' JOHN LYNDON
v.
PRABHATI LAL CHOWDHURY & ORS.

AUGUST 19, 1987

B [O. CHINNAPPA REDDY, M.H. KANIA AND -+
K. JAGANNATHA SHETTY, JJ.]
. .,
Civil Procedure Code. 1908: Section 64 and Order 21 Rule 57~
Attachment order-Execution petition or suit in which attachment

c
ordered dismissed-Restoration of such proceedings-Whether attach-
ment revived-Alienation of attached property-Whether affected.
'}"
-
The appellant filed a petition for execution of the money decree
obtained by her in High Court against the judgment-debtor and attach·
ment was levied in execution on open land and a portion of the premises
in question belonging to the judgment-debtor. Subsequently, the
D judgment-debtor sold a portion of the attached property. The purch·
aser in turn, sold a portion thereof to the respondents. The aforesaid 'f
execution petition was dismissed for default but later on an application
by the appellant, the said Execution Case was restored, and the said
property was again attached, and a proclamation for sale of the said
property was issued under Order 21 Rule 66 of the Code of Civil Proce-
E dure. The respondents' petition.under Order 21, Rule 58 of C.P.C. for
releasing the property purchased by the respondents from attachment x
was dismissed. The High Court allowed the appeal.

In appeal to this Court, it was urged on behalf of the appellant r
that in view of the provisions of Section 64 of the Code of Civil proce-
F dure, the sale of the property by the judgment debtor to the purchaser
and the sale thereafter by him to the respondents, which were both
effected during the subsistence of the attachment, were void as against
the appellant decree-holder, and although the attachment ceased on the
dismissal of the Title Execution Case, on May 9, 1972, it was revived by
restoration of the case.
G
Allowing the appeal, this Court,

HELD: An order of restoration of a suit dismissed for default
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
H execution application. (10430]

1038
N.J. LYNDON v. P.L. CHOWDHURY [KANIA, J.) 1039

In the present case both transactions, sale by the judgment-debtor A
and subsequent sale by the purchaser to the respondents, were effected
during the subsistence of the attachment and before the Title Execution
Case was dismissed for default. [1043C]

t- The Division Bench of the High Court was in error in taking the
· view that l!Y reason of the dismissal of the said Title Execution Case, the B
attachment came to an end and the order of restoration of the said case
't: would not affect any alienations made before the restoration, although
such alienations might have been made during the subsistence of the
attachment. [1044C]

-
-.(
Sushi/a Bala Dasi v. Guest Keen Williams Ltd., I.L.R. 1949 Vol. C
1 Calcutta, p. 177 Annapurna Patrani & Ors. v. Lakshmana Kara &
Anr., A.I.R. 1950, Madras, p. 740; Pradyut Natwar/al Shah v. Suryak-
ant H. Sangani & Ors., A.I.R. 1979 Bombay, p. 166; Tavva/a Vee-
raswami v. Pulim Ramanna & Ors., A.I.R. 1935 Madras, p. 365 and
Patringa koer v. Madhavanand Ram & Ors., Calcutta Law Journal,
1911, Vol. 14 p. 476, referred to. D
y
CIVIL APPEi.LAIB JURISDICTION: Civil Appeal No. 3535
of 1982.

From the Judgment and Order dated 16.3.1982 of the Calcutta
""' High Court in F.M.A No. 282 of 1981 & C.R. No._ 3842 (m) of 1980. E

T.S. Krishnamurthy Iyer, G.L. Sanghi, G.S. Chatterjee and
D.P. Mukherjee for the Appeliant.

L.N. Sinha, M.P. Jha, K.C. Mittal and A.K. Chopra for the
Respondents. F

The Judgment of the Court was delivered by

KANIA, J. This is an appeal directed against the judgment of a
Division Bench of the High Court of Calcutta in Appeal from Original
~Order No. 282 of 1981 with C.R. No. 3842 (m) of 1980. The relevant G
facts for the purpose of this appeal can be shortly stated. In August
1969, the appellant before us obtained a money decree in the High Court
at Calcutta against the judgment debtor Maharaj Kumar Maley Chand
Mahatab. On 31st July 1970 the appellant filed a petition for execution
of the decree, numbered as Title Execution Case No. 19 of 1970. On
3rd August 1970 attachment was levied in execution on open land H
I
1040 SUPREME COURT REPORTS [1987] 3 S.C.R.

A belongi~g to the judgment debtor admeasuring about 19 Kathas at _,.J,
JOA, Diamond Harbour Road, and portion of premises No. 2 Judges
Court Road, now, numbered as 6/JQ, Diamond Harbour Road and
2/A, Judges Court Road, 24-Paraganas respectively. On 14th Septem-
ber 1970, the judgment debtor sold a portion of the attached property
admeasuring a little over to 11 Kathas to one Bharat Shamshere Jung-i
B Bahadur Rana. On 29th March, 1972 Bharat Shamshere Jung Bahadur
Rana sold a portion of the said land admeasuring a little over 9 Kathas
(referred to hereinafter as "the said property") to Prabhatilal "!
Chowdhary and others who are the respondents in the present appeal.
On 9th May, 1972 the aforesaid Execution Petition, namely, Title
. Execution Case No. 19 of 1970 was dismisssed for default. On 16th
C September, 1975, on an application by the appellant, the said Title
Execution Case No. 19 of 1970 was restored. On a petition dated 2&th 'y
-
September, 1975 the said property was again attached. Thereafter, a
proclamation for sale of the said property was issued under Order 21
Rule 66 of the Code of Civil Procedure. The respondents Prabhatilal
Chowdhary & Others filed a petition under Order 21 Rule 58 of
D C.P.C. for releasing the said property from attachment. This applica- "'f
tion was registered as Misc. Case No. 8 of 1978. On 11th August, 1980
the said Misc. Case No. 8 filed by Prabhatilal and Others was dismis-
sed. On 16th March, 1982 the aforesaid appeal from Order No. 282 of
1981 and C.R. NO. 2843(m) of 1980 was allowed by the Calcutta High
Court. It is this decision allowing the said appeal which is assailed
E before us.

M£. Sanghi, learned counsel for the appellant urged that the sale
of the said property by the judgment debtor to Bharat Shamshere Jung
Bahadur Rana and the sale of the said property by the said Bharat r
-
Shamshere Jung Bahadur Rana to the respondent were both effected
F during the subsistence of the attachment. Although the attachment
ceased on the dismissal of the said Title Execution Case on 9th May,
1972, the said attachment was revived by reason of restoration of the
said case on 16th September, 1975. It was submitted by him that, in
view of the provisions of Section 64 of the Code of Civil Procedure, the
sale of the said property by the judgment debtor to Bharat Shamshere "
G Jung Bahadur Rana and the sale of the same by the Bharat Shamshere
Jung Bahadur Rana to the respondent are both void as against the
appellant decree holder.

Section 64 of the Code of Civil Procedure runs as follows:-

H "Where an attachment has been made, any private transfer
N.J. LYNDON v. P.L. CHOWDHURY [KANIA, J.J 1041
~
' or delivery of the property attached or of any interest A
therein and any paymeµt to the judgment debtor of any
debt, dividend or other monies contrary to such attach-
ment, shall be void as against all claims enforceable under
the attachment."

't- There is an Explanation to this Section, but it is not material for B
our purposes.
~
Order 21 Rule 57 as it stood prior to its amendment in 1976 and

-
as amended by the Calcutta High Courtran as follows:-

"Where any property has been attached in execution of a
c
~
decree but by reason of the decree-holder's default the
Court is unable to proceed further with the application for
execution, it shall either dismiss the application or for any
sufficient reason adjourn the proceedings to a future date.
Upon the dismissal of such application the attachment shall
cease unless the Court shall make an order to the con- D
"( trary. ''

The words "unless the Court shall make an order to the con-
trary" have been added by way of amendment to the said Rule made
by the Calcutta High Court.

- \a... In view of the plain wording of the aforesaid Rule, it is clear that
when the aforesaid Title Execution Suit was dismissed for default, the
attachment levied ceased as no order to continue that attachment was
made by the Court. The question as to what is the effect of the restora-
tion of the said Title Execution Suit, that is, whether the said restora-
E

tion would restore the original attachment and, if so, to what extent. F
In this connection, it has been held by the Calcutta High Court that
where an order for releasing property from attachment is set aside on
appeal, the effect is to make the property still subject to the attach-
ment and to restore the state of things which had been disturbed by the
orde1 of release. It makes no difference whether the order for releas-
). ing the attachment under Order 21 Rule 63 of the Code of Civil Proce- G
dure is passed in appeal or revision. (See Sushi/a Bala Dasi v. Guest
Keen Williams, Ltd., l.L.R. 1949 Vol. 1 Calcutta, p. 177.

A Division Bench of the Madras High Court in Annapurna
Patrani & Ors. v. Lakshmana Kara & Anr., A.LR. 1950, Madras,
p. 740 has held that where in execution of decree property is attached H
1042 SUPREME COURT REPORTS [1987J 3 s,c.R.
._.(
A but the petition for execution is dismissed for default and on appeal
the or~er of d1sm1ssal for default is set aside, the effect of the appellate
order is to restore the order attaching property and the trial Court
wo~ld ?ave to proceed with the execution application from the stage at
which it had mterrupted it by dismissing it for default. The appellate
order restoring attachment would relate back to the date when the
B attachment was first made and would render invalid any alienation in -+
the interim period. A similar view has been taken by a learned Single
Judge of the Bombay High Court in Pradyut Natwarla! Shah v. Surya- ~

kant N. Sangani & Ors., A.LR. 1979 Bombay, p. 166.

c
However, in the present case the restoration of the Title Execu-
tion Case was not made on an appeal or revision, whereby order of
dismissing the said suit for default was set aside, but the said suit has
been restored on an application made for restoration. Such an order
')"
-
for restoration cannot be equated with an order passed on appeal or in
revision setting aside the dismissal. In this case we are not called upon
to consider what is the effect of an order of dismissing the Execution
p Application for default being set aside on appeal or revision, and we
do not propose to express any opinion in that connection. In a case '1'
which is more relevant for determination of the question before us,
namely, Tavvala Veeraswami v. Pulim Ramanna & Ors., A.I.R 1935
Madras, p. 365 which was decided by a full Bench of the Madras High
Court an order dismissing a suit for default was set aside on an applica-
E tion for that purpose. It was held that where an order dismissing a suit :;,I
for default is set aside on an application for that purpose, the suit ~
remains as it was on the day when it was dismissed and all proceedings
taken up upto that date must be deemed to be in force when the
dismissal is set aside and all interlocutory orders will be revived on the
setting aside of the dismissal. Similarly, .an order for attachment of
r
F property will also be revived. In that case an attachment before judg-
ment was raised on security being furnished. The suit in which the
attachment was levied was dismissed for default, but was restored on
an application made for that purpose and decreed and the decree-
holder sought to enforce the security bond. It was held that on the
restoration of the suit, all ancillary orders were restored without any
0 further order, and that therefore, the security bond given for the rais- -.(
ing of attachment before judgment was also restored and the decree
holder was entitled to enforce the security bond. It was observed by
Beasley C.J., who delivered the judgment with which other learned
Judges concurred, as follows:-

Ir! "It does not seem to be reasonable that the plaintiff in a
N.J. LYNDON v. P.L. CHOWDHURY [KANIA, J.] 1043

suit who has got an attachment before judgment should A
have again, after the restoration of the suit after its dismis-
sal for default, to apply to the Court for a fresh attachment
and that having done so, the defendant should have to
apply to raise the attachment by producing a surety or
sureties. The commonsense view of the matter is that all
ancillary orders should be restored on the suit's restoration B
without any further orders."

In the present case both, the sale by the judgment debtor to
Bharat Shamshere Jung Bahadur Rana and the sale by Bharat

- Shamshere Jung Bahadur Rana to the respondent, were effected
during the subsistence of the attachment and before the Title Execu- C
lion Case was dismissed for default. In our view, even if a doubt were
to be entertained as to whether an order for restoration of the suit or
execution application would have the effect of restoring the attach-
ment retrospectively so as to affect alienations made during the period
between dismissal of the suit or execution application and the order
directing restoration, it is clear that an order of restoration would D
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.

The learned counsel for the respondent drew our attention to the
decision of the Division Bench of the Calcutta High Court in the case E
~-· of Patringa Kaer v. Madhavanand Ram & Ors., Calcutta Law Journal,
1911, Vol. 14 p. 476 where it was held that a 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. The reversal of judicial orders leaves unaffected
the rights of strangers, bona fide purchasers, whether under execution F
sale or under private sale, who have acquired title on the assumption
that such orders were valid in law. A careful reading of this decision
shows it is of no assistance to the case of the respondent because the
judgment makes it clear that what was really held was that in the
absence of statutory provisions to the contrary, the court cannot cancel
the order of dismissal for default of an execution application with G
retrospective effect so as to prejudice the title that might have been
acquired in the interval by a stranger, when the property was admit-
tedly not in the custody of the Court. This 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. But, in the present case, the alienations were effected H
1044 SUPREME COURT REPORTS (1987] 3 S.C.R.
.,.l_
A when the attachment was subsisting as we have already pointed out
and hence this decision is of no assistance to the respondents. We are
not called upon to consider as to whether the aforesaid decision lays
down good law or as 1o what would have been the effect of the restora-
tion of the Title Execution Case had the alienations been effected
during the aforesaid interval and we do not propose to say anything in t
B this regard.

In our view, the Division Bench of the Calcutta High Court was "
in error in taking the view, in the judgment appealed against, that by
reason of the dismissal of the said Title Execution Case, the attach-

c
men! came to an end and the order of restoration of the said case
would not affect any alienation made before the restoration although
such alienations might have been made during the subsistence of the )·
-
attachment.

We may mention that our attention was drawn to the amendment
of Rule 57 of Order 21 made by the Calcutta High Court, but in our
D view that amendment merely provides that although under Rule 57 of y
Order 21 the attachment would cease on an order dismissing the appli-
cation for execution it is open to the Court to make an order to the
contrary which would mean that the Court could make an order to
continue the attachment for some time. The amendment. however, is of

-
no relevance in the case before us.
E ~
In the result, the appeal is allowed, the impugned judgment set
aside and the order of First Subordinate Jude at Alipore in Misc.
Case No. 8 of 1978 which was set aside by the Calcutta High Court
restored. The respondents must pay to the appellant the cost of the )'"
appeal.
F
N.P.V. Appeal allowed.