SUPREME COURT OF INDIA

Before:- V.N. Khare and S.N. Variava, JJ.

Civil Appeal No. 3952 of 1990. D/d. 2.8.2000.

Indira Devi Arya - Petitioner

Versus

Bajrang Lal Khaitan and others - Respondents

Civil Procedure Code, 1908, Order 21, Rule 57(2), Order 38, Rule 11A(2) - Attachment - Execution - Dismissal of execution application in default with the result attachment of property also stood vacated - Restoration of execution - Revival of attachment - In absence of any order extending period of attachment, order of attachment cannot automatically be revived on subsequent restoration of execution case.

[Paras 2 and 3]

ORDER

Respondent Nos. 1 and 2 filed a Suit for recovery of money against the predecessor-in-interest of Respondents 3 to 8. The said suit was decreed on 10-03-1977. The decree-holder put the decree in execution and the property in dispute was attached. On September 10, 1987, the execution case was dismissed for default. With the result, the attachment of the property also stood vacated. On January 8, 1988, the judgment debtor, by registered sale deed, transferred the property in dispute in favour of the appellant. As a result of sale deed, the appellant came into possession over the property. On 07-04-1988, the decree-holder filed an application for restoration of the execution case which was dismissed for default. On September 2, 1988, the executing Court restored the execution case after setting aside the order dismissing the case for default. Thereafter, the appellant, as the transferee of the property in dispute, filed an application under Order-21, Rule 57 of C. P. C. and Order 38 Rule 11A of C. P. C. praying that attachment of the property may be erased as she had purchased the property when there was no attachment. Learned Civil Judge rejected the said application. Against the said order, a revision was filed which was also dismissed by the High Court. Aggrieved, the appellant is in appeal before us.

2. The short question that arises for consideration is whether on the dismissal of the execution case, the attachment order also stood vacated and would not revive on the restoration of the execution case? Order 21, Rule 57 provides that where any property has been attached in execution of a decree and the Court for any reason passes an order dismissing the execution of the decree, the Court shall direct whether the attachment shall continue or cease and shall also indicate the period up to which such attachment shall continue or the date on which such attachment shall cease. Sub-rule (2) of Rule 57 further provides that if the Court omits to give such direction, the attachment shall be deemed to have been ceased. Order 38, Rule 11A sub-rule (2) provides that an attachment made before judgment in a suit which is dismissed for default shall not be revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored.

3. In the present case, we find that at the time when execution case was dismissed for default, the executing Court did not pass any order extending the period of attachment. Therefore, after the restoration of the execution case, the order of attachment remained non-existent and could not have been automatically revived on the restoration of execution case. We are, therefore, of the view that in law earlier order of attachment, if not extended by the Court, stood vacated and would not revive on restoration of the execution case.

4. In view of the aforesaid legal position, we are of the view that the view taken by the Courts below was erroneous and deserves to be set aside. We, accordingly, set aside the order of the High Court. The appeal is allowed accordingly. There shall be no order as to costs.

Appeal allowed.