ABDULKHADAR Vs. PARAMESWARAN PILLAI

JUDGEMENT

(1.) THESE petitions are for revising the orders passed in execution in O. S. 300 of 1097 of the Munsiff's Court, Attingal, and in O. S. 242 of 1116 of the Munsiff's Court, Alleppey, respectively. The revision petitions raise certain important questions of law, and both of them were referred for decision by a Full Bench. Since the questions raised in both the cases were to some extent inter-related, they were heard together. The questions raised will also be considered and decided together.

(2.) IN the case dealt with in C. R. P. 429 of 1124, the suit was dismissed on 3. 6. 1100. It was restored to file and again dismissed on 29. 10. 1107. IN appeal, the trial court decree was reversed and the suit decreed on 24. 11. 1113. IN execution of that decree, certain properties attached before judgment were proclaimed for sale when the revision petitioner intervened and objected to the sale of item 2 in the proclamation schedule. He stated that the proclamation was issued on the assumption that the property had been attached before judgment, that there was no such attachment, that even if there was such an attachment, it was not in force, that the same should be deemed to have been raised when the suit was dismissed twice by the trial court, and that for these and other reasons the execution was to be stopped as regards item 2. The execution court held that though the trial court dismissed the suit it was decreed by the High Court and hence the attachment before judgment had revived, and that there is no substance in the objection that the attachment ceased with the dismissal of a prior execution application. The claim petition was dismissed and the claimant has filed this revision petition.

(3.) FIRST Question: The relevant rule that has to be considered in this connection is R. 9 of 0. 38 C. P. C. (Indian ). It reads as follows: "where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed". There is difference of opinion as to the revival of the attachment before judgment if the suit dismissed by the trial court is decreed by the appellate court in reversal of the decision of the trial court.