CHUNDURU RAMACHANDRAYYA Vs. CHUNDURU NAGESWARA RAO

JUDGEMENT

(1.) The decree-holder appeals against the order of the District Judge of Kistna which upheld the order of the District Munsiff of Masulipatam in E.A. No. 1470 of 1938 in O.S. No. 211 of 1933. E.A. No. 1470 of 1938, was filed by some of the defendants in the action asking that their shares in the property sought to be proceeded against in execution of the decree in O.S. No. 211 of 1933 should be exonerated. This petition was allowed by the trial Court and that order was? , upheld on appeal. The suit (O.S. No. 211 of 1933) was filed by the appellant for recovery of a sum of money. The first defendant was the father and the other, defendants were the sons. The suit itself was upon a promissory note dated 9 April, 1930, executed by the first defendant in favour of the plaintiff's transferor; one Chanduru Venkataratnam. An application under Order 38, Rule 5, Civil Procedure Code, was also filed seeking attachment before judgment of certain properties belonging to the family of the first defendant and his sons. Notice and conditional attachment were ordered on this application and the properties were attached. Subsequently owing to certain difficulties in service of notice on the sons, they were exonerated and a decree was obtained against the first defendant, the father. Before this stage was reached, the first defendant's wife filed a claim petition objecting to the attachment of the property on the ground that the property belonged to her. This claim was allowed and the attachment was raised by order dated 15 August, 1933. The application for attachment before judgment came on for further orders on 9 September, 1933. On that day, a memo. was filed giving up the defendants 2 to 6 on the ground already stated, that there was some difficulty in serving them, On the application for. attachment the following order was passed, "Claim in respect of attached property has been allowed. Petition dismissed." The decree- holder filed O.S. No. 35 of 1934 under Order 21, Rule 63 to set aside the claim order. The suit was dismissed by the trial Court on 18 March, 1935. There was an appeal against it and the appellate Court allowed the appeal and held that the property was attachable at the instance of the plaintiff. This was on the 22nd October, 1935. Thereafter the decree-holder filed an execution application to execute the decree by bringing the property that had already been attached before judgment to sale. He proceeded upon the footing that the attachment before judgment already made was still subsisting. The question is whether the attachment was subsisting Or, at any rate, whether it was restored when on appeal the claim of the first defendant's wife was dismissed.

(2.) As certain points were not very clear in the original judgment of the District Court, I called for findings by my order dated 4 November, 1941. Two points were sent down for finding, (1) whether the shares of all the defendants had been attached before judgment in O.S. No. 211 of 1933 on the file of the District Munsiff's Court, Masulipatam, and (2) whether the partition alleged by the defendants was not a sham or collusive transaction in order to its being effected fraudulently and with intent to defraud the creditors. On the first question the District Judge finds that the shares of all the defendants had been attached before judgment. But he finds that it was not subsisting by reason of the fact that it ceased to exist when the application for attachment before judgment was dismissed on the 9 September, 1923. The District Judge finds that the fact that defendants 2 to 6 (the sons of the first defendant) were exonerated from the suit and that the suit proceeded only against the first defendant would not make any difference in this matter. The father alone can be sued as the manager of the family and in this case it is found that he was clearly sued as the joint family manager and that the attachment order of the 9 September, 1933, would bind the shares of the sons as well.

(3.) The order dismissing the application for attachment was based expressly on the ground that the claim in respect of the attached property had been already allowed. It was not for any default of the decree-holder. The order on the claim petition was made the subject of a suit and the plaintiff's contention was upheld though not by the trial Court but by the appellate Court. The question is whether when on appeal in the claim suit, the plaintiff's right was upheld, the attachment before judgment became restored. When the application for attachment was not dismissed for any default of the decree-holder, either Order 21, Rule 57, Civil Procedure Code, or the principle involved in it does not apply. That rule applies only where the Court dismisses it for some default of the decree-holder. Here there was no default on the part of the decree-holder. A third party filed a claim petition and the claim was allowed. It is doubtful whether the Court ought to have dismissed the execution petition at that stage and whether it ought not to have kept it pending the result of any claim suit that might be filed by the unsuccessful party. But at the time when the claim suit was filed and a decree was passed allowing the claim of the decree-holder there is no reason why the attachment should not be held to be restored. The suit under Order 21, Rule 63 is a continuation of the claim proceedings. There is a decision of this Court in Anthaya Hegade V/s. Manjayya Shetty , where an attachment was, on the success of a claim proceeding, raised and the claim suit was ultimately decreed in favour of the decree-holder, and it was held that the attachment stood revived. The learned Judges (Krishnan and Odgers, JJ.) held that the raising of an attachment on the success of a claim proceeding is only provisional and the attachment is revived on the success of the suit by the attaching decree-holder. There are other decisions of other High Courts which are referred to and followed by Krishnan and Odgers, JJ., in the case just cited. I am of opinion that the principle of this decision applied to this case even though it is an attachment before judgment with which we are now concerned.