SUNDARAM FINANCE Vs. SHANKAR CHIT FUND

JUDGEMENT

(1.) SUNDARAM Finance Ltd. a claimant in respect of a motor truck which had been attached before judgment under Order 38, Rule 5 Civil Procedure Code is the petitioner herein. Civil Revision No. 86 of 1965 arises out of an order dated december 12, 1964 passed in M. J. C. No. 23 of 1964 arising out of Money Suit No. 144 of 1963 in the court of Munsif, Berhampur, by which the trial court released the attached truck claimed by the petitioner Sundaram Finance Ltd. subject to the condition that the claimant either deposits the suit amount in cash or furnishes property security of the suit amount by a certain date. A similar order was also passed by the learned Munsif for release of the truck in question on the same terms in M. J. C. No. 32 of 1964 arising out of Money Suit No. 145 of 1963 out of which the other Civil Revision No. 84 of 1965 arises. The said two civil revisions have been heard together. The case of the petitioner claimant Sundaram Finance ltd. is stated as follows.

(2.) ON May 29, 1962, there was a hire purchase agreement in respect of the truck in question of which J. Kamaraju Prusti was the hirer and the claimant Sudaram finance Ltd. was the owner; under the terms of the agreement the price of the truck Rs. 25,960/- was to be paid in 24 monthly instalments the first 23 monthly instalments of Rs. 1,085/- each and the last instalment of Rs. 1005/- The claimant's case is that there is still due to him a sum of Rs. 9,307. 44 P, being the balance due under agreement and incidental charges. On Shankar Chit Fund, a creditor of the hirer J. Kamaraju Prusti, is stated to have filed two suiti against the hirer J. Kamaraju Prusti being Money Suit No. 144 of 1963 for recovery of Rs. 1,652. 85 P. and Money Suit No. 145 of 1963 for Rs. 1,648. 25 P. the total amount claimed against the defendant hirer in the aid two suits being Rs. 3,301. 10 np.

(3.) ON December 15, 1963 the truck in dispute is stated to have been attached before iudgment under Order 38. Rule 5 Civil P. C. in the said Money Suits. The claimant Sundaram Finance Ltd. (Petitioner herein) opposed the attachment of the truck on the ground that the truck was the subiect-matter of the subsisting hire purchase agreement and therefore it could not be attached. This claim became the subject matter of investigation under Order 38, Rule 8 Civil Procedure Code which provides that where any claim is preferred to property attached before iudgment, such claim shall be investigated in the manner provided under Order 21, Rules 58 to 63 for investigation of claims to property attached in execution of a decree for payment of monev. The learned trial court by his order dated December 12, 1964 released the truck from attachment subject to the condition that the claimant sundaram Finance Ltd. either deposits in cash or furnishes property security of the suit amount by a certain date, and the attachment was accordingly raised in respect of the said truck subieet to the said condition