N R THIRTIVERIGADAM Vs. KALIANNAN

JUDGEMENT

(1.) In these civil revision petitions at the instance of the second defendant in 0. S. No. 955 of 1981 and 0. S No. 956 of 1981. District Munsiff's Court, Gobichettipalayam, directed against the order of dismissal of the applications in I. A. No. 573 of 1982 and I. A. No. 574 of 1982 in 0. S. No. 955Of 1981 and 0. S. No.- 956 of 1981 filed by, the Petitioner under 0. 38 R.' 9 C. P. C., the question that arises for consideration is whether the court below was right in dismissing the applications on the ground that they were not maintainable. The circumstances under which the proceedings arose may be stated as under the respondents in these civil revision Petitions instituted 0. S. No. 955 of 1981 and 0. S. No. 956 of 1981 against the petitioner and others for the recovery of a sum of Rs. 7.987/- and Rs. 64511rez-pectively with subsequent interest on the basis of a savings deposit scheme conducted by the Petitioner. The petitioner and others are resisting those suits on several grounds, which are not very relevant for purposes of these civil revision petitions. In 1. A. No. 1571 of 1981 and I. A. No, 1572 of 1981 the respondent-, herein applied for attachment before judgment of a sum of Rs. 10.000 /- and R.s. 8000/- respectively belonging ,a to the petitioner. Initially, the court passed an order of conditional attachment and subsequently the attachment was also made absolute after earning the objections raised by, the petitioner and others. It is not in dispute that the order of attachment absolute has become final in the sense that the petitioner had not preferred any appeal against the orders of attachment. However, the petitioner subsequently filed 1. A. No. 573 of 1982. A. No. 574 of 1982 in 0. S. No. 955 of 1981 anti 0. S. No. 956 of 1981 under 0. 38 R. 9 C. P.C. praying for the raising of the attachment effected in I. A. No. 1571 of 1981 and L A. No. 1572 of 1981 in 0. S~ 41),,5 of19f!l and 0. S. No. 956 of 1981. In the affidavit filed by the petitioner in support of those applications, the petitioner after referring to the attachment already effected in I. A. No. 1571of 1981 and I. A. No. 1572 of 1981,stated that though he is possessed of sufficient property to clear all the amounts that may be due to the respondent Sin the event of the respondents succeeding in the suit yet. lie had also spent quite large amounts in raising sugar cane crops in his lands which had been harvested by the Receiver and the amounts were lying with the Receiver and the Sugar. Mill as well and that he had not been paid any amount at all it was also further stated by the petitioner that he was in need of money and that he was prepared to furnish sufficient security for the payment of money due to the respondents without prejudice to his contentions in the Suits. A draft security bond was also stated to have been furnished along with the petition. Ultimately the petitioner prayed that after accepting, the security so furnished by him. - The order of: attachment effected in I.. No. 1571 -of 1981 and 1 A. No. 1572 of 1981 may be raised. The respondents herein on the ground resisted that application, that immediately: 'after the Institution of the suits an order for conditional attachment was passed by the court and after the petitioner- and others appeared and, contested the proceedings the court was satisfied that a case for malting, the conditional order of attachment absolute had been, made out and passed an order also to that effect on 23-9-1981and therefore the petitioner Cannot be permitted again to offer security and release the: amounts already attached. According to the respondents. if the petitioner was acting.", bona fide then, such an application ought to have been filed even before the orders were passed in 1. A. No. 1571 'of 1981 and I. A No. 1572 of 1981 and after the disposal those applications by passing an order of attachment absolute the remedy of the petitioner was only by wav of an appeal and not to again pray for the raising: of it the attachment. An objection that the applications were not maintainable was also raised by respondents.

(2.) The learned Principal District Munsiff. Gobichettipalayam, who enquired into these, applications was of the view that if the petitioner was in any manner aggrieved by the order of attachment passed already in I. A. No. 1571 of 1981 and 1. A. No. 1572 of 1981, an appeal ought to have been preferred by him under. 0.43, It. 1 (Q) C. P. C. and not having done so, it was not open, to, the , petitioner to urge again that the attachment should be raised on accepting the security. The applications Were therefore he1d to be maintain able and dismissed.

(3.) The learned counsel for the petitioner contended that though in I.A No. 1572 of 1981. an order for attachment absolute had earlier been passed. yet that would not preclude the petitioner from approaching the court under 0. 38 R. 9 C. P. C. offering security and Praying that the attachment effected earlier should be withdrawn. It was further pointed out by the learned counsel that 0. 38 R. 9 C. P. - C. is intended to facilitate the raising of attachment already effected and to enable a party to deal with either his money or property already attached on furnishing adequate security to meet the claim of the plaintiff to the satisfaction of the court and that the circumstance that earlier. The defendant was unable to satisfy the court that the claims of the plaintiff would be met by offering sufficient security, would -not, preclude him from filing an application for raising the attachment when subsequently he is able to offer immovable property or other properties as sufficient security to meet the amounts due under the decree that may be eventually passed. Reliance in this connection was placed by the.' learned counsel for the petitioner on the derision in Ravi Wagabhushanam v. Ned Gopalakrishna Murthy On the other hand. The learned counsel for the respondents in these Petitions would submit that the petitioner and others had already been heard in the applications for attachment before judgment and only thereafter, final orders were passed and those orders had also become final and there after it is not open to the petitioner to re-agitate the question of furnishing security and raising the attachment again, as., the,. Proper remedy of the petitioner would only be to prefer an appeal against the order of attachment and that not having been done, the petitioner cannot pray for such a relief by another independent application. The learned counsel also drew attention to the circumstance that if such applications were permitted that would destroy the finality of the orders even without resort to remedies provided for under law.