TONY Vs. NAVODAYA

JUDGEMENT

(1.) The Order of the Court was pronounced by Kurian Joseph, J. - What is the difference between attachment before Judgment under O.38 and attachment in execution under O.21 Whether a predecretal attachment under O.38 would be treated as post decretal attachment in execution under O.21 by virtue of the 1976 amendment to the C.P.C. introducing R.57 under O.21 and R.11 A under O.38 These are the two interesting issues for consideration in this civil revision petition.

(2.) Short facts: The petitioners, husband and wife, are the Judgment - debtors in E. P. No. 684/1999 in O. P. No. 175/1985 on the files of the II Additional Sub Court, Trichur. The suit was filed for realisation of amounts advanced to the petitioners - defendants. An attachment under O.38, R.5 was effected on 25th March 1985. The suit was decreed on 8th April 1988. The plaintiff - respondent filed E. P. No. 182/1990 against the first petitioner herein by initiating steps under R.37 of O.21. However, the E. P. was dismissed on 31st January 1992. There was no direction whatsoever that the attachment continued. Thereafter the respondent filed E. P. No. 224/1996 against both the petitioners by proceeding against the predecretal attached property having an extent of 17.5 cents. That petition was also dismissed on 29th November 1997 without making any observation as to the continuance of the attachment. Thereafter E. P. No. 687/1999 was filed for proceeding against the property attached under O.38, R.5. In the meanwhile the Judgment - debtors transferred the property to their son. However, in C.R.P. No. 289/2002 it was held by this court that the transfer is fraudulent. It is submitted that a review petition is pending in the matter. In the matter of continuance of attachment, this court directed the Sub Court to consider the question whether the attachment under O.38, R.5 subsists even after the dismissal of the execution petition. By the impugned order dated 13th December 2002 in E.P. No. 684/1999 in O. S. No. 171/1985 the Sub Court held that the attachment subsists even after the dismissal of the execution petition. The decision was rendered by following a Full Bench decision of this court reported in Arumughom Ammal v. Nayanar Panicker 1962 KLT 264 .

(3.) It is the contention of the learned Counsel for the petitioner that after the amendment of the Code in 1976 introducing R.57 under O.21 and R.11A in O.38, a predecretal attachment under O.38 R.5 has to be treated as an attachment in execution under O.21 and therefore by virtue of R.57 of O.21 unless the execution court, while dismissing an execution petition, makes an order as to the continuance of the attachment, the attachment shall be deemed to have ceased on the dismissal of the execution petition. Reliance is placed on the decision of this court in Sebastian Joseph v. Cherian Varghese 1994 (1) KLT 445 . It is to be noted that neither party had brought this decision to the notice of the execution court and therefore, the impugned decision is rendered only by following the Full Bench decision in Arumughom Ammal's case (supra).