LexNANCY JOHN LYNDON versus PRABHATI LAL CHOWDHURY & ORS.
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' 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 ordered dismissed-Restoration of such proceedings-Whether attach- c 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 x releasing the property purchased by the respondents from attachment 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, y 1911, Vol. 14 p. 476, referred to. D 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 J
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