9911796707
TMI Blog1987 (8) TMI 452X X X X Extracts X X X X X X X X Extracts X X X X ..... cts 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 belonging to the judgment debtor admeasuring about 19 Kathas at 10A, Diamond Harbour Road, and portion of premises No. 2 Judges Court Road, now, numbered as 6/1D, Diamond Harbour Road and 2/A, Judges Court Road, 24-Paraganas respectively. On 14th September 1970, the judgment debtor sold a portion of the attached property admeasuring a litt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... missal 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 Jung Bahadur Rana and the sale of the same by the Bharat Shamshere Jung Baha- dur Rana to the respondent are both void as against the appellant decree holder. Section 64 of the Code of Civil Procedure runs as follows:- Where an attachment has been made, any private transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... subject to the attachment and to restore the state of things which had been disturbed by the order of release. It makes no difference whether the order for releasing the attachment under Order 21 Rule 63 of the Code of Civil Procedure is passed in appeal or revision. (See Sushila Bala Dasi v. Guest Keen Williams, Ltd., I.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.I.R. 1950, Ma- dras, p. 740 has held that where in execution of decree property is attached but the petition for execution is dismissed for default and on appeal the order of dismissal for default is set aside, the effect of the appellate order is to restore the order attaching property an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 property will also be revived. In that case an attachment before judgment 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 further order, and that therefore, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 of Patringa Koer 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 sale or under private sale, who have acquired title on the assumption that such orders were v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ration 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 view that amendment 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 could make an order to continue the attachment for some time. The amendment, however, is of no relevance in the case before us. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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