SIDHARTHAN Vs. PRAVEEN CHANDRAN

JUDGEMENT

(1.) Whether attachment of property before judgment can be withdrawn under O.XXXVIII R.9 after suit is decreed under any circumstance especially in view of O.21 R.55 and if so whether the power can be used by the Trial Court when the matter is pending in appeal or only Appellate Court can exercise the power are the main questions to be considered in this order. The appellant in RFA, (petitioner in the Writ Petition) is the defendant in OS No. 171 of 1997 on the file of the Sub Court, Thrissur. The suit is one for realisation of money. The plaintiff obtained an order of attachment before judgment with respect to some of the properties belonging to the petitioner. Finally, the suit was decreed in favour of the plaintiff and the defendant filed the first appeal RFA No. 610 of 2005. IA No. 3954 of 2005 was filed for staying the execution of the decree. A Division Bench of this Court ordered interim stay on condition that appellant furnishes security for the decreetal amount to the satisfaction of the court below within one month from 7-12-2005. It is the case of the petitioner that he furnished the security to the satisfaction of the court and the court accepted the same and thereafter he filed IA No. 865 of 2006 for lifting the attachment under O.XXXVIII R.9 of the Code of Civil Procedure. He wanted to produce the attached properties as security for the loan to be obtained from the bank for development of his business. The court rejected the petition as not maintainable as there is no direction from the appellate court to lift the attachment. Against Ext. P2 order rejecting the petition to lift the attachment, the present Writ Petition was filed under Art.227 of the Constitution of India. When the Writ Petition came up for hearing before the learned single Judge, the learned single Judge referred the matter to the Division Bench doubting the correctness of the decision of a single Judge of this Court in Joy v. Cherukutty, 1991 KHC 121 : 1991 (1) KLT 393 : ILR 1991 (2) Ker. 374 . In the above decision, it was held that once the suit is decreed, order of attachment can be lifted or withdrawn only under O.21 R.55 of the Code of Civil Procedure. The provision under O.XXXVIII R.9 cannot be pressed into service after the disposal of the suit. According to the learned single Judge, the above decision requires reconsideration. So, when the Writ Petition came up before us, we have called for the records of the first appeal also.

(2.) We may now quote the relevant provisions to be considered in this case. O.21 R.55 of CPC deals with automatic removal of attachment once the decree is satisfied. The above reads as follows:

(3.) O.XXXVIII R.9 gives power to the civil court to lift the attachment on certain conditions. O.XXXVIII R.9 provides as follows: