G K PRABHAKARAN AND CO Vs. DAVID TRADERS

JUDGEMENT

(1.) THE revision petition has been filed against an order passed by the Munsiff Court , trichur, in I. A. No. 2990 of 1971 in O. S. No. 805 of 1971 by which the learned Munsiff refused to enquire into a claim petition filed by the petitioner against an attachment of property. THE plaintiff in that case filed a suit for recovery of a sum of money from the defendants and applied for attachment before judgment of certain movable properties kept in a shop alleged to belong to the defendants. THE revision petitioner, on coming to know of this order for attachment, filed an application in court objecting to the attachment of the moveables on the ground that the moveables belonged to him and did not belong to the defendants in the case. That petition was dismissed by the learned Munsiff as not maintainable on the ground that a petition objecting to the attachment can be entertained only after the attachment was effected. It is against that order that this revision petition is filed.

(2.) THE petitioner contends that the court will get jurisdiction to attach the property only if the property belongs to the defendants and when a third party comes forward with an objection that the property does not belong to the defendants the matter can be enquired into by the court under S. 151 of the Civil Procedure Code even before attachment is effected. THE question is whether this contention is correct.

(3.) IT is said that if the third party can move the court only after the property is attached it will be of no assistance to him because by the process of attachment harm would have been done to him. His reputation and credit would have been damaged beyond repair. This risk is safeguarded by the Code itself providing that the court can issue the order only on being satisfied by affidavit or otherwise of the need for attachment. The risk to the plaintiff in countenancing this ante-attachment claim of the third party is greater. IT will more often than not afford an opportunity to the defendant to defeat or delay the seizing of his property and thereby defeat the realisation of the fruits of the decree that may be passed in future. Again, the nature of the enquiry, the character of the order that the court may pass, its conclusiveness on the rights of parties, the question of a right of suit that the aggrieved party may have, the period of limitation within which that suit may be filed are all controversial points which may arise as a consequence of the entertaining an application before actual attachment. All these will conflict with the scheme and provisions of the Code and the intention of the legislature. Hence the inherent power of the court cannot be invoked to consider the application of the third party before attachment of the property.