KAMALAKSHI AMMA Vs. OUSEPH

JUDGEMENT

(1.) The petitioner in Execution Applications Nos. 101 and 102 of 1976 in O. S. No. 303 of 1974 in execution on the file of the Munsiff's Court, Muvattupuzha is the petitioner in this Civil Revision Petition. In the above suit, which was decreed against the petitioner's husband and another, the petitioner was not a party. The respondent decree holder took out execution and in execution an order was issued by the Court to attach certain movables. Accordingly, the Amin came to the spot to effect the attachment with Police help. The petitioner obstructed contending that the movables sought to be attached really belonged to the petitioner and not to her husband the judgment debtor. As there was Police help, the petitioner had no other go but to pay the decree amount to save the movables from attachment. So, according to the petitioner, she paid the amount under protest. Though the payment under protest is recorded in the report of the Amin dated 24-3-1976. as per that report the payment was made for and on behalf of the judgment debtor, the petitioner's husband. But as per the receipt given to the petitioner by the Amin the payment was not made on behalf of anybody. It is pertinent to note that it was a result of a correction by overwriting in the report the payment became for and on behalf of the husband judgment debtor The next day the petitioner filed the Execution Applications referred to above. Toe prayer in E. A. 101 of 1976 filed under O.21 R.58 and 59 of the Code of Civil Procedure was for the dismissal of the petition for attachment finding the possession of the petitioner of the movables sought to be attached E A. No. 102 of 1976 was filed under S.151 of the Code of Civil Procedure for the return of the amount paid by the petitioner on security pending the decision of E. A. No. 101 of 1976. The Execution Court simply dismissed E A. No. 102 of 1976 on 10-6-1976 without giving any reason Thereafter, on 22 6 1976 E A. No. 101 of 1976 was dismissed as not maintainable as no attachment was, as a matter of fact, effected and that the decree amount was paid and attachment averted. Though no attachment was as a matter of fact effected, the objections filed by the respondent decree holder to the Execution Applications before the execution court proceeded on the basis that the attachment was made.

(2.) The petitioner challenges the above two orders of the execution court in this Civil Revision Petition. Two contentions are raised. They are (1) A third party who paid under protest the decree amount to prevent attachment of his movables is entitled to the return of the amount paid and a petition for the same is maintainable under S.151 of the Code of Civil Procedure; and (2) even though no attachment was effected, a third party who averted attachment of his movables by paying the decree amount under protest is entitled to move the execution court under O.21 R.58 and 59 of the Code of Civil Procedure for the dismissal of the petition for attachment.

(3.) In S. Chokalingam Asari v. N.S. Krishna Iyer ( AIR 1964 Mad. 404 ) it is said: