KRUTIVAS TRIPATHY Vs. GORI BHOTRUNI

JUDGEMENT

(1.) THE decree -holder is the Petitioner. In Money Suit No. 19 of 1954 in the Court of the Munsif, Jeypore, an attachment for the disputed land was effected on 18 -8 -1954 before judgment. The suit was dismissed on 9 -7 -1955. No specific order was passed withdrawing the attachment when the suit was dismissed. After a chequered career the suit was ultimately decreed in part by the District Judge on 25 -4 -1960. In the meantime on 29 -4 -1958 the legal representatives of the Judgment -debtor had transferred the attached land by a registered sale -deed (ext. 1) in favour of the opposite party. In E.P. No. 31 of 1961, the decree -holder wanted to sell the attached property. A fresh attachment was effected on 25 -5 -1961 as directed by the Court. On 10 -7 -1961, the opposite party filed an application under Order 21, Rule 58, Code of Civil Procedure in M.J.C. No. 67 of 1961. The objection was allowed by the learned Munsif of Jeypore by his order dated 30 -10 -1961. The Civil Revision has been filed against this order.

(2.) MR . P.V.B. Rao contends that the attachment before judgment, which ceased to be in force with the dismissal of the suit, will revive when the decree dismissing the suit was subsequently reversed by the same Court or by the appellate Court, and this revival will be in force from the date on which the attachment before judgment was effected. To appreciate the contention, it is necessary to examine the scope of Order 38, Rule 9, Civil of Civil Procedure which lays down:

(3.) THE leading authority on the point is a Full Bench decision of the Madras High Court reported in Balaraju Chettiar v. Masilamani Pillai, : A.I.R. 1930 Mad 514. Their Lordships observed that the object of attachment before judgment was to satisfy any decree which might be passed in the suit was the decree passed by the trial Court and not the appellate decree, and for this purpose the theory that the 'Proceedings in appeal are only continuation of proceedings in the suit is not to be applied in the context of the provision of Order 38, Rule 9. Despite the fact, in Annapurna Patrani v. Lakshprana Kara : : A.I.R. 1950 Mad 740 (B.D.), a Division Bench observed that though the value of, : A.I.R. 1930 Mad 514 has been weakened by another Full Bench of that Court reported in T. Veeraswami v. P. Ramanna : : A.I.R. 1935 Mad 365. (F.B.) : A.I.R. 1930 Madras 514 stands as good law in Madras. The consensus of authorities in India seems to be in support of this view. : : A.I.R. 1935 Mad 365 discusses the position with regard to a suit, dismissed for default, subsequently restored to file. Their Lordships held that all the interim orders passed till the disposal of the suit would revive with the restoration of the suit. Though in principle, it is difficult to make any distinction between as lit decreed in appeal and a suit received after restoration, still : : A.I.R. 1930 Mad 514, which holds the field in Madras, is directly applicable to the facts of this case. The later Full Bench decision is not directly applicable and I express no view on it., : A.I.R. 1930 Mad 514 has been subsequently followed by a full Bench of the Mysore High Court reported in, A.I.R. 1955 Mys 95, dissenting from, A.I.R. 1952 T.C. 414 : : A.I.R. 1958 AP 216 is also in the same line. The dictum also prevails in Calcutta High Court Abdul Rahaman v. Amin Sharif, I.L.R. 45 Cal. 780.