ITTAMAN NAYAR Vs. ANDI

JUDGEMENT

(1.) The plaintiff in O.S. No. 377 of 1125 of the Wadakkancherri Munsiffs Court is the revision petitioner in this case. The suit is for mortgage money. The plaintiff applied for attachment before judgment of certain properties belonging to the defendant and the attachment was allowed. The 1st counter petitioner here put in a claim in respect of the properties attached before judgment. It was also contended by the claimant that the court had no jurisdiction to order the attachment before judgment. The reason given is that under O.34 R.3 of the Cochin Civil Procedure Code the decree holder in a mortgage suit can proceed personally against the judgment debtor only after exhausting the remedies against the mortgage properties. It is therefore contended that only after such remedies are exhausted that execution can be taken against the person or other properties of the judgment debtor and that therefore the attachment before judgment in this case was illegal. Reliance was placed on the ruling of the Cochin High Court reported in 7 Cochin LJ 425 (31 Cochin 452) Thavu v. Atchuthan Nair, in which it was held that the attachment of standing crops in execution of a mortgage decree before any attempt was made to sell the mortgage property was premature and invalid. The lower court accepted this plea and without going into the merits of the claim petition held that the attachment was invalid and allowed the petition of the claimant.

(2.) I have no doubt that the order of the lower court is wrong. There is nothing in O.34 R.3 of the Cochin Civil Procedure Code prohibiting the court from attaching before judgment properties belonging to the mortgagor other than the mortgage property. O.34 R.3 only prescribes the manner in which a decree should be passed in a mortgage suit. It says that after directing the sale of the mortgaged properties in the first instance for realisation of the amount due the decree shall also provide that in case the net proceeds of such sale be insufficient to pay the amount due to the plaintiff, the balance, if legally recoverable from the defendant otherwise than out of the properties sold, be paid by the defendants personally. What was held in 31 Cochin 452 was that in view of the above provision in O.34 R.3 personal execution against the mortgagor could be taken only after the remedies against the mortgage property were exhausted. It was therefore held that the attachment effected in execution of the decree before any attempt was made to sell the mortgage property was premature and invalid. But there is nothing in that decision to show that an attachment before judgment could not be effected in a mortgage suit. In fact an argument was advanced in that case that the attachment should be treated as an attachment before judgment and therefore valid. Their Lordships held that the attachment was one taken out in execution of the decree and could not be treated as an attachment before judgment. It was taken for granted in that case that if the attachment could be treated as an attachment before judgment it would be valid. Under O. 38 R. 5 C.P.C. the court has power to attach before judgment properties belonging to the defendant if the conditions laid down in that rule are satisfied. There is nothing in that rule to show that the court has no power to order an attachment before judgment in a mortgage suit. It has been held in various cases that the provisions of O.38 R.(5) are not inapplicable to mortgage suits. Where the mortgage property is insufficient to discharge the mortgage debt other properties of the defendant can be attached before judgment if the requirements of O.38 R.5 are satisfied. (Vide AIR 1943 Bom. 94, 1931 Bom. 329, 1933 All. 191, 1922 Cal. 790, 1929 Lah. 402, 1925 Pat. 291, 1936 All. 408)

(3.) The lower court has clearly gone wrong in treating the attachment before judgment as a process in execution and in holding that it has the same effect as an attachment in execution. An attachment before judgment is essentially different in character from an attachment made after decree. In Basiram v. Kattiyanni Debi (38 Cal. 448) the distinction has been pointed out thus: An attachment before judgment does not for all purposes stand on the same footing as an attachment in execution proceedings. This indeed is obvious from first principles. The attachment does not of necessity ensure the property to the person who attaches it. He became entitled to proceed against it only if he eventually gets a decree. In Sri Ram Manik v. Tincouri Rai (4 B.L.R. 63) Mitter, J. observes thus: An attachment prior to a decree is not an attachment for the enforcement of the decree but it is a step taken merely for the purpose of preventing the debtor from delaying or obstructing such enforcement when the decree subsequently passed shall be sought to be executed. An attachment after decree is, on the other hand an attachment made for the immediate purpose of carrying the decree into execution and it presupposes an application on the part of the decree holder to have his decree executed. It is thus clear that an attachment before judgment has not the same effect as an attachment in execution, although it is not necessary to reattach the property in execution when it has been attached before judgment.