VARALAXMI METAL STORES Vs. YECHURI BHASKARA HARANATH

JUDGEMENT

(1.) 1. The appeal 1s directed against the order passed by the District Judge, Visakhapatnam in E P. No 2/1974 in O.S. No. 38/1968 which was originally filed in the Court of the Subordinate judge, Visakhapatnam as O.S. No. 80/1966.

(2.) The respondent filed the above mentioned suit for possession of one shop-room bearing door No. 8/58 and for past and future profits. The suit was decreed on 2-12-1969 granting (I) delivery of vacant possession of the suit property, (2) arrears of rent from 1-11-1965 to 18-9-1966 at the rate of Rs. -22/- per month together with interest at 6% per annum and also costs of the suit of Rs. 1.018-20. There isalso a direction for enquiry Into mesne profits under order 20 Rule 12 C.P. C. from 18-9-1966 till the date of delivery of possession. Even before the decree the plaintiff obtained attachment in respect of a shop-room and a vacant and also a terraced house before judgment as per the orders in I.A.No. 362/1966. The amount inwhich the attachment warrant was issued was Rs. 10.483-96. The attachment was effected on 2-10-1966. Pursuant to the preliminary decree, the plaintiff filed two applications for future mesne profits-one isI. A No. 29/1970 and the other is I.A.No 61/1972. in I.A. No. 29/1970 a decree for mesne profits was passed on 31-8-1971 and agiinst this decree an appeal A.S. No. 137/1974 was filed in the High Court and it isstill pending. There isno appeal preferred against the decree passed in I.A. No. 61/1972 and hence became final.

(3.) The decree-holder filed the present E P. (E P. No. 2/1974) seeking the sale of immovable properties which were attached before judgemen: as per the orders in I.A. No 362/1966 The E.P. was resisted by the appellants. They contend that the attachment effected before judgment inI.A. No. 362/1966 stood extinguished as the amount for which the attachment was effected was fully paid off to the decree-holder and hence there can be no sale of property without attachment and as the attachment has not been subsisting, the decree holder cannot seek the sale of the said properties without obtaining fresh attachment and hence the E.P. is not maintainable.