IDICULA MATHAI Vs. GEEVARGHESE SKARIA

JUDGEMENT

(1.) The plaintiff who is the appellant is the holder of a decree for money passed in O. S. 157 of 1104 against the first defendant. In execution he proceeded to attach certain movable properties as belonging to the first defendant. The attachment was not effected and in the meanwhile the first defendant's wife the second defendant, and the second defendant's nephew the third defendant applied to the execution court to withdraw the warrant of attachment, alleging that the properties did not belong to the first defendant. The application was allowed on the second defendant's executing a security bond Ext. F in favour of the court, undertaking to produce the properties sought to be attached in court should they be proved to belong to the first defendant, and in the event of her failure, to answer for the decree amount in person and by the properties specifically charged under it. The court then made an investigation and by order Ext. E dated the 21st Dhanu, 1123, held that the first defendant had no title to the properties. The suit was instituted to set aside Ext. E, to declare that the properties belonged to the first defendant, and upon such declaration to direct the second defendant to produce the properties as undertaken, and in the event of default, to enforce Ext. F against her person and the properties secured by Ext. F. The court of first instance found that the properties belonged to the first defendant and gave a decree to the plaintiff against the second defendant and the properties. On appeal by defendants 2 & 3, the Subordinate Judge held, that there having been no attachment of the properties, the suit to set aside Ext. E was not maintainable, that even the relief sought, of declaration of title to the properties sought to be attached, could not be granted, and that in any event, the remedy by way of enforcement of Ext. F lay in execution of the decree in O. S. 157 of 1104 and not by suit. On these findings the suit was dismissed, without considering whether the properties belonged to the first defendant or not.

(2.) In the second appeal, the finding that there was no attachment and that consequently the suit to set aside Ext. E is not maintainable, was not challenged. There having been no attachment, Ext. E order has not the quality of conclusiveness as an order under O.21 R.63, C.P.C. would have. It is not an order contemplated by any of the provisions of the Civil Procedure Code, and the Subordinate Judge was even prepared to treat it as a nullity. However this be, it can have no repercussion on the prayer for declaration of title to the properties sought to be attached, upon which a cloud had been cast by the objections of defendants 2 and 3. I fail to see the ground on which the Judge held this prayer to be not maintainable.

(3.) The view of the Judge, that Ext. F could be enforced only in execution of the decree in O. S. 157 of 1104 is not correct. S.145 of the Civil Procedure Code, which appears to be the only provision which has some relevance, deals with the personal liability of a person who has become liable as surety under one of the clauses (a), (b) and (c) of that Section, and not in any case, with the liability of the properties secured. The section is specific. Moreover, judicial decisions have held that S.145 is an enabling provision and does not bar the ordinary right of suit. Shakir Husain v. Chandoo Lal (AIR 1931 Allahabad 567) is one of such cases. The decisions are also positive, that the remedy against the properties secured has to be enforced by suit. That the frame of the suit admits of relief being granted on the provisions in Ext. F is not open to doubt. The prayer to set aside Ext. E may be treated as a surplusage. The liability of the second defendant and of the properties secured by Ext. F is conditional upon the properties sought to be attached being proved to belong to the first defendant, and it was precisely towards this end, that the prayer for declaration of title was made. Upon such prayer being allowed, Ext. F could be enforced against the secured properties by suit.