MURUGAIAH VELAR Vs. VELAMMAL

JUDGEMENT

(1.) Challenge in this civil revision petition is made to the fair and decreetal order, dated 23.03.2006, passed in E.A. No. 578 of 2005 in E.P. No. 18 of 2005 in O.S. No. 278 of 2000, on the file of the Sub Court, Sankarankovil.

(2.) The civil revision petitioner had obtained a money decree against the respondents 1 to 3/defendants in O.S.No.278 of 2000. It is found that the appeal suit preferred by the respondents 1 to 3/defendants in A.S.No.194 of 2003 against the Judgment and Decree passed in O.S.No.278 of 2000 had been dismissed on 12.04.2004. It is found that the petitioner/plaintiff has levied execution proceedings against the respondents 1 to 3/defendants in E.P.No.18 of 2005, under Order 21, Rule 52 of the Code of Civil Procedure. It is also noted that the above mentioned execution petition has been levied as against the gratuity amount to which, the respondents 1 to 3/defendants are entitled to as the legal representatives of the deceased borrower and it is also found that the gratuity amount, which is the subject matter of the execution petition had been attached before Judgment during the pendency of the suit in I.A.No.443 of 2001 and the said attachment had also become absolute. Therefore, it is noted that the E.P.No.18 of 2005 has been levied against the attached gratuity amount to which the respondents 1 to 3/defendants are entitled to as the legal representatives of the deceased borrower and while the above execution petition is pending, it is found that the respondents 1 to 3/defendants had preferred E.A.No.578 of 2005, under Sections 60(g) and 151 of the Code of Civil Procedure seeking to raise the attachment passed in I.A.No. 443 of 2001. The basis for the above said application as per the case of the respondents 1 to 3/defendants is that the gratuity amount attached before Judgment in I.A.No.443 of 2001 is the amount due and payable to the deceased borrower i.e., Dharmalingam and inasmuch as the gratuity amount is exempted from attachment as per Sec. 60(g) C.P.C., the attachment in respect of the said amount is liable to be raised.

(3.) The revision petitioner/plaintiff resisted the above application contending that the order of attachment passed in I.A.No.443 of 2001 had been made on merits after hearing both sides and as against the said order, no appeal or revision has been preferred by the respondents 1 to 3/defendants and therefore, the said order having become final and the attachment having also been made absolute, the defendants are not entitled to seek for the raising of the attachment and thus, according to the revision petitioner/plaintiff, the application laid by the respondents 1 to 3/defendants above mentioned is hit by the principles of res judicata and further, the respondents 1 to 3/defendants are also estopped from questioning the said attachment.