J RAMATNURTHY Vs. SRINIVAS CORPN

JUDGEMENT

(1.) The only question involved in this appeal, is whether the Courtbelow after decreeing the suit can continue inquiry into a petition under Order 38 Rule 8 C.P.C. filed pending the suit for raising the order of attachment before Judgment.

(2.) The facts of the case are: The property of the appellants wasattached by order of the lower Court, dated 24-7-78. It was an attachment before Judgment in a suit filed for recovery of money by the 1st respondent against 2nd and 3rd respondents. The appellants filed LA. 619/78 to raise the attachment. The suit was decreed 9-12-1981. On 12-2-1982, long after decreeing the suit, LA. 619/78 was dismissed for default. In fact on that very date an adjournment petition for LA. 619/78 was filed by the appellants. However, that adjournment petition was dismissed on 12-2-1982 and also consequently the LA. 619/78 for default. Therefore on 12-2-1982 itself, the appellants filed LA. 175/82 to restore LA. 619/78- dismissed on that very date for default. While dismissing that LA., the Court below held: " One of the petitioners came to the Court on the same day and filed the present petition..... Therefore I find that there is just and reasonable cause for the petitioners to absent themselves on 12-2-1982, at the time when the matter was called. But when the main suit was disposed of all the interlocutory, applications filed in the main suit shall stand as closed. But the Court without closing this petition, unnecessarily posted this matter for enquiry. , Under these circumstances, I am of the opinion that the petitioners instead of prosecuting this petition, which is an interlocutory application in the main suit, are at liberty to file a separate petition under Order 21 Rule 58 CP.C. if the Plantiff files, E.P. seeking execution of the Decree." From the above, it is to be noticed that the Court below found justification for the absence of the appellants at the time when the LA., was called. However it dismissed the restoration petition on the ground that the appellants can renew the petition under Order 21 Rule 58 C.P.C., if the plaintiff seeks execution of the decree. It also thought that LA. 618/78 was unnecessarily kept pending when the main suit itself was disposed of. Whether this order of the lower Court is correct or not is the question involved in this appeal.

(3.) It is now, the before, necessary to advert to the provisionsgoverning this aspect of the matter. Order 38 Rule 5 C.P.C., empowers the Court to order conditional attachment before Judgment. It is Order 38 Rule 6 that contemplates passing of an order of attachment before Judgment in cases where the defendant fails to furnish security or shall not show cause why such a direction to furnish security shall not be issued, etc. Order 38 Rule 8 C.P C. refers to the manner of adjudication of claim petititions preferred to property attached before Judgment. It is under this provision the appellants filed a claim petition before the Court below. The provision runs as under: "8. Adjudication of property attached before Judgment: Where any claim is preferred to property attached before Judgment, such claim shall be adjudicated upon in the manner here in before provided for the adjudication of claims to property attached in execution of a decree for the payment of money". Order 38 Rule 9 Contemplates removal of attachment before Judgment in cases where the defendant furnishes security or the suit results in dismissal. Order 38 Rule 10 clarifies that the attachment before Judgment shall not affect rights of strangers nor shall it bar the decree-holder from applying for sale. Now, Rule 11 declares in categorical terms that where the property is already under attachment before Judgment and subsequently there was a decree passed in favour of the plaintiff in the suit then it shall not be necessary upon an application for execution of such decree to apply for re-attachment of the property. Rule 11-A specifically states that the provisions applicable to an attachment made in execution of a decree shall apply to an attachment made before Judgment which continues after the Judgment by virtue of the provisions of Rule 11.