PRAKASHAN Vs. CLEMENT @ JAMES

JUDGEMENT

(1.) The petitioner is the plaintiff in O.S. No. 89 of 2004 on the files of the Principal Sub-Court, North Paravur as well as the petitioner in E.P. No. 180 of 2011 filed therein. The suit was one filed by the petitioner for realization of money from the respondent, amounting to Rs. 2,75,000/- with interest, based on a promissory note executed by the respondent, in favour of the petitioner. The respondent in his written statement denied the borrowal of the said amount from the petitioner. In the suit, the petitioner has filed I.A. No. 2064/2004 praying for attachment before judgment of the property of the defendant under O. 38 R. 5 of the Code of Civil Procedure. The court below had allowed the I.A. and ordered attachment of the respondent's property having an extent of 20 cents with a residential building therein. The attachment was effected on 26/08/2004 and a report has been submitted before the court to that effect. Thereafter, the case was listed for evidence on 5/2/2007. The respondent was absent on the said day for evidence and he was set ex parte by the court below. The suit was decreed with costs on 7/3/2007. Thereafter I.A. No. 1627/07 was filed by the respondent for setting aside the ex parte decree along with I.A. No. 1628/07 for condoning the delay in filing I.A. No. 1627/07. Both the applications were allowed on costs and the ex parte decree was set aside on 30.11.2009. Thereafter, the case was listed on 9.2.2010 for evidence. But, on that day, the suit was dismissed for the default of the petitioner. Thereafter, restoration application was filed by the petitioner as I.A. No. 1046 of 2010. On 14.7.2010, the said restoration application was allowed by the court below on payment of cost of Rs. 1,000/-. The cost was paid on 16.7.2010 by the petitioner and the suit was restored on 16.7.2010. Thereafter, the suit was again decreed ex parte on 27.10.2010. The respondent again filed an application for setting aside the ex parte decree with another application to condone the delay. But, both the applications were dismissed and ultimately the suit was decreed. Based on the decree, the petitioner filed E.P. No. 180/2011. During the E.P. proceedings, the respondent filed objection stating that during the period where the suit stood dismissed, he had alienated his property attached before judgment to a third party by name 'Nisha'. But, the date of sale was not mentioned in the objection. According to the respondent, the property under attachment, which had been sold away to Ms. Nisha during the period, when the suit stood dismissed, is not liable to be sold in execution of the decree as the same is in the possession of a third party. After considering the rival contentions, the court below passed the impugned order stating that the property to be sold in execution of the decree does not belong to the respondent/judgment debtor and the judgment debtor had sold away the property to one Nisha when the suit stood dismissed. Hence, the property is not liable to be sold in execution of the decree. Then, the case was posted for further steps. The legality and propriety of this order is under challenge in this Original Petition.

(2.) The learned counsel for the petitioner advanced arguments assailing the findings of the court below that the property sought to be sold in execution of the decree does not belong to the judgment debtor and the judgment debtor had already sold away the property to the third party during the period when the suit stood dismissed on default. The learned counsel further contends that when the suit was dismissed for default, it was incumbent upon the court to pass an order withdrawing the order of attachment of the defendant's property, passed before judgment. But, in the instant case, such an order withdrawing the attachment order, passed before judgment had not been passed along with the judgment dismissing the suit for default. Therefore, the attachment order shall be deemed to be continuing in operation notwithstanding the dismissal of the suit. If that be so, even if the transfer of property in favour of third party was on 28.6.2010, the date on which the suit stood dismissed, the transfer was barred by the order of attachment before judgment, which was passed earlier in the suit and continuing in operation, even after the dismissal of the suit on default. According to him, even though the suit stood dismissed on default, the respondent would have obtained an order withdrawing the attachment made before judgment from the court below, before transferring the property in favour of the third party. The learned counsel, to fortify the above argument, drew my attention to the statutory mandate under O. 38 R. 9 of the Code of Civil Procedure. The learned counsel further cited the decision in Vareed Jacob v. Sosamma Geevarghese, 2004 2 KerLT 649

(3.) Per contra, the learned counsel for the respondent submits that Annexures-A2 to A4 show that the transfer of property in favour of the third party was effected on 28.6.2010, the day on which the suit stood dismissed. Similarly, Annexure-A4 shows that in the impugned order of the court below, which was marked as Ext. P12 in this O.P., by a typographical error the year of assignment document in favour of the third party was shown as '2011', instead of '2010'. The learned counsel further contends that even if an order with drawing the attachment has not been passed along with the order dismissing the suit for default, the attachment order shall also be deemed to be ceased to exist by the dismissal of the suit. According to him, if such an order was not passed by the court below, the same can be an omission from the part of the court which passed the order dismissing the suit and the attachment order cannot be deemed to be continuing in force, notwithstanding the dismissal of the suit. According to him, the purpose of O. 21 R. 9 of the C.P.C. is to cast a duty or an obligation on the court which passed the order of attachment to lift the same at the time of dismissing the suit so as to remove the legal hurdle in the way of transfer of property and also to give necessary information as regards the lifting of attachment to the Sub-Registry. Even if the court omitted to do such a statutory duty, no benefit would be ensured to the plaintiff in the suit. The learned counsel further cited the decisions in Balaraju v. Masilamani, 1930 AIR(Mad) 514; Somasundaram v. Periya Karuppan,1930 AIR(Mad) 520; Ma Thein v. Nepean, 1931 AIR(Rang) 281 and Govindrao Mahadik v. Devi Sahai, 1982 AIR(SC) 989.