P RAMAKRTSHNA TANTRI Vs. VIJAYA BANK LTD

JUDGEMENT

(1.) This civil revision petition is directed against the order dated 12-6-1978 passed by the learned Civil Judge, Gulbarga, in Misc. Case No. 56 of 1976 allowing the application filed by the first respondent Bank under Order 38 Rule 8 of the CPC (hereinafter referred to as the Code) for raising the attachment before judgment of the moveables of the 3rd respondent obtained by the petitioner in O S. No, 90 of 1975 and further directing that the sale proceeds of the moveables be adjusted towards the amount due under the decree obtained by the first respondent in O.S. No. 465 of 1975 on the file of the Addl. Munsiff, Gulbarga, against the 3rd respondent.

(2.) It is contended by Sri Appa Rao, learned Counsel for the petitioner, that the Court has acted without jurisdiction in deciding the application filed under Order 38 Rule 8 of the Code for raising the attachment after the sale of the attached moveables has taken place.

(3.) Facts necessary to decide th question are as follows : The 3rd respondent, on 22-11-1973, hypothecated certain moveables belonging to him to the first respondent-Bank for a sum of Rs. 20,000. The 2nd respondent was also a co-obligant along with the 3rd respondent. The 3rd respondent was also due to pay to the petitioner a certain sum being the balance of the consideration amount in respect of the sale of certain immoveable property made in favour of the 3rd respondent by the petitioner. As 3rd respondent did not pay that amount, the petitioner filed O. S. No. 90 of 1975 against the 3rd respondent and obtained a decree for Rs. 10,668 on 8-11-1976. The petitioner also obtained an order for attachment before judgment of the moveables of the 3rd respondent which were hypothecated to the 1st respondent-Bank by the 3rd respondent. The Bank also filed a suit O. S. No. 65 of 1975 and obtained a decree for the sum advanced by it on hypothecation of the moveables. The first respondent-Bank has filed an application under Order 38 Rule 8 of the Code, for raising the attachment before judgment obtained by the petitioner. That application was not disposed of, but nevertheless, the moveables of the 3rd respondent which were got attached before judgment, were brought for sale in the execution filed by the petitioner for execution of the decree obtained in O.S. No. 90 of 1975 and were sold in public auction in that execution. After the sale, an application was filed in the aforesaid Misc. 56 of 1976, for im- pleading the 2nd respondent as a party to the said proceeding. In that proceeding an order was passed on 6-1-1978 directing that the sale proceeds of the attached properties be deposited in the fixed deposit for a period of six months in the Syndicate Bank, Southern Bazzar, Gulbarga. Thus, the amount of sale proceeds was kept in fixed deposit in the Syndicate Bank, Southern Bazzar, Gulbarga. After the sale the Court had taken up the application in Misc. 56/76 for consideration and had come to the conclusion that the moveables, sold in auction in execution of the decree passed in O.S. No. 90 of 1975, were hypothecated to the 1st respondent-Bank and as such, it was entitled for preference and accordingly the Court had directed that out of the sale proceeds, the decree obtained by the 1st respondent-Bank be satisfied first and thereafter the remaining amount be paid over to the petitioner for satisfaction of the decree obtained in O.S, No. 90 of 1975. 4 Therefore the question for consideration is as to whether the Court could have decided the application for raising the attachment after the sale of the moveable properties attached before judgment had taken place. An application made under R. 8 of O. 38 of the Code as is provided in that Rule, is to be adjudicated upon in the manner provided for the adjudication of C'aims to property attached in execution of decree for the payment of money Thus, this naturally takes us to R. 58 of O. 21 of the Code. As per sub-rule (2) of R 58 of O 21, all questions (including questions relating to right, title or interest in the property attached) arising between the parties to a proceeding or their representatives under the said rule and relevant to the adjudication of the claim or objection shall have to be determined by the Court dealing with the claim or objection and not by a separate suit. Thus, it is clear that what is to be adjudicated is the right, title or interest in the property attached and which arise between the parties to a proceeding or their representatives It is clear from the facts stated above that the moveable properties in question were sold in public, auction in execution of the decree obtained by the petitioner in O S. No. 90 of 1975 against the 3rd respondent. The auction purchaser also had deposited the amount which was directed to be kept in fixed deposit by the order of the Court, dated 6-1-1978, in the Syndicate Bank, Southern Bazzar, Gulbarga. As per Rule 77 of Order 21 of the Code, the sale of move able property by public auction becomes absolute on payment of the purchase money. Rule 78 of Order 21 of the Code provides that no irregularity in publishing or conducting the sale of moveable property shall vitiate the sale, but any person sustaining any injury by reason of such irregularity at the hand of any other person may institute a suit against him for compensation or (if such other person is the purchaser) for the recovery of the specific property and for compensation in default of such property. Thus, it is clear that in the case of moveable property sold by a public auction, the sale becomes absolute as soon as the purchase money is paid which is required to be paid at the time of the sale or soon after the sale as may be directed by the officer conducting the sale. When once the sale becomes absolute, the attachment made before judgment ceases to exist. Consequently, the question of raising such attachment does not arise. Therefore, the question of enquiring into the claim made in Order 38 Rule 8 of the Code for raising attachment does not arise inasmuch as if such a claim is to be allowed, the property will have to be released from attachment which is not possible when once the sale of the moveable properties by public auction becomes absolute. Thus, the application for raising the attachment before judgment of moveable properties made under Order 38 Rule 8, becomes in- fructuous if not decided before the sale of such moveables by public auction becomes absolute. In the instant case, on the date when the application filed under Order 38 Rule8 of the Code was decided the attachment before judgment was not subsisting, and the sale of the moveable property by public auction had become absolute. Hence, the Court could not have decided the application.