PARUR CENTRAL BANK LTD Vs. A C CHACKO

JUDGEMENT

(1.) Petitioner before this Court is the decree holder in O.S.No.401/79. Petitioner wanted to execute a mortgage decree he has obtained for sale of the immovable properties. Petitioner filed an Execution Petition, E.P.No.326/87. In this Execution Petition, the decree holder filed E.A.No.710/87 to attach the immovable properties of judgment debtor No.7. The Execution Court dismissed the application for attachment.

(2.) The Execution Court said that the decree in the case was passed delineating the manner in which the execution is to be taken. It was said that though the decree is dated 20-6-1981 till 1987, the decree holder has not taken any step to bring the charged properties to sale. It was further noticed that an Execution Petition filed earlier was dismissed for default in 1986. The application for attachment was made on the specific allegation that the charged properties will not be sufficient to satisfy the debt. The court below said "it is not sufficient, they are to take the risk and face the consequence of their carelessness". Decree holder filed the present revision petition challenging the order of the Execution court. This Court passed an order of attachment on 7-3-1989. This attachment is now in force. Judgment debtor No.7 filed an application for lifting the attachment. In fact, when the properties were attached by this Court, the order passed by the Execution Court raising the attachment once given by the Execution Court has been set at naught. Counsel for judgment debtor No.7 submitted before me that in execution of the decree obtained by the revision petitioner, it is not possible under law to effect an attachment on the ground that the charged properties are insufficient for the decree debt. He submitted before me that the Execution Court has been given a mandate how to execute the decree and in the light of the mandate given by the decree, there is no scope for attaching the properties on the ground that the charged properties are insufficient to satisfy the decree.

(3.) Counsel for judgment debtor No.7 submitted before me that the attachment effected, cannot be treated as an attachment before judgment. The attachment itself is not a mode of execution and the mode of execution is controlled by the decree in the case, which makes it specific that personal execution is possible only after exhausting the execution in regard to the charged properties. He referred me to the provisions of the Civil Procedure Code in regard to the passing of the preliminary decree in a mortgage suit for the sale of the property as contemplated by the Code and the different stages envisaged by the Code in such a suit and also the provision that was applicable after the Kerala amendment as far as courts in Kerala were concerned in regard to mortgage suit for the sale of the property charged.