NATESA NILANGIRIYAR Vs. VRAJU MUDALIAR

JUDGEMENT

(1.) The only questions that fall to be determined in this second appeal are, (a) whether the attachment before judgment of the lands situate at Chidambaram can be held to be an attachment in execution of the decree, although no application was made for their sale but only for the sale of other lands situate at Guddalore which were also attached before judgment by the same order? (b) Did the attachment before judgment cease to exist in respect of Chidambaram properties when the application in execution was dismissed in regard to those situate at Cuddalore?

(2.) The two questions separately formulated for the sake of clearness depend for their answer on the first one. If the answer to that question happens to be in the affirmative, the answer to the second one would also be the same. But if the answer to the first question is in the negative, the reply to the second would have to be similar and this appeal will have to be, in that case, rejected.

(3.) The facts which lead up to the present appeal may be now stated. Two suits were instituted at Cuddalore against the same person in 1920. The plaintiff brought one (O.S. No. 27 of 1920) for the recovery of Rs. 4,800 in the Court of the Subordinate Judge while the defendant brought the other (O.S. No. 409 of 1920) for Rs. 1,878 in the Court of the District Munsiff. The plaintiff in the latter suit (who is the defendant in the present litigation) had obtained an attachment before judgment against his defendant's lands situate at Cuddalore and Chidambaram. Both the suits were decreed in due course. There is a concurrent finding of both the lower Courts that the present defendant had, in the first instance, applied for execution against properties situate in Cuddalore alone but this application was finally dismissed without satisfaction on the 20 December, 1928. An attempt was made by learned Counsel for the appellant to challenge this finding but being a finding of fact and having regard to the application which the defendant had subsequently made for the attachment of Chidambaram lands only, 1 am of opinion that this decision could not be challenged in second appeal and was, in my opinion, correctly decided. This view was expressed by me during the arguments which subsequently proceeded on that assumption.