JOY Vs. CHERUKUTTY

JUDGEMENT

(1.) Revision petitioner is the decree holder in O.S.451 of 1984 of the Sub Court, Trichur. He filed the suit for realisation of the amount due on a promissory note. Certain items of properties were attached before judgment. The suit was decreed on 30-7-1988. First respondent (first defendant) filed I.A.769 of 1990 under Order XXXVIII R.9 for raising the attachment on two items of properties and allowing him to pay a portion of the decree debt from the sale proceeds of those items. Revision petitioner challenged the maintainability of the petition. The Sub Judge ordered payment of Rs.10,000/- and allowed the petition.

(2.) Contention of the revision petitioner is that the Court lacked jurisdiction to pass the impugned order as the application under Order XXXVIII R.9 can be entertained only before the suit was decreed and not thereafter. Counsel for the revision petitioner submitted that the Court below failed to note that the decree amount in the case comes to around Rs. 1,00,000/- and if the attachment on the substantial and valuable items of properties is lifted and the properties are allowed to be sold on deposit of Rs.40,000/- the decree holder would be driven to a position whereby he would not be able to realise the decree amount from the remaining items of properties as they are not that much valuable.

(3.) The question that arises for consideration is as to whether under Order XXXVIII R.9 the Court can raise attachment of an. item of property out of the properties attached before judgment after the suit has been decreed. Order XXXVIII R.9 provides that where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn, when the defendant furnishes the security required, together with security for the costs of the attachment or when the suit is dismissed. Thus it is apparent that the Court can withdraw the attachment only when the defendant furnished the security required by Court together with the security for the costs of the attachment or when the suit is dismissed. Court cannot release attachment over an item alone on the motion of the defendant after the suit is decreed.