RUDRAVARAM VENKATASUBBIAH Vs. RUDRAVARAM VENKATA SESHAIYA

JUDGEMENT

(1.) In this case the 1st defendant attached the plaint property before judgment in connection with a suit filed against the 3rd defendant, viz., O.S. No. 137 of 1910. The plaintiff subsquently purchased the property. The question is whether at the time of the plaintiff s purchase the property was subject to the attachment by the 1st defendant. Two points are raised now : (1) that the original attachment was invalid as having been completed after the decree in the suit was passed; and (2) that even if the attachment was valid it became an attachment in execution when the decree was sought to be executed; and ceased to exist under the provisions of Order XXI, Rule 57, Civil Procedure Code. So for as the second contention is concerned, the matter is practically concluded by authority. Vide Bavuddin Sahib v. Arunachalla Mudali (1913) 26 M.L.J. 215 Ganesh Chandra Adak v. Banwari Lal Roy (1912) 14 I.C. 345, and Kosuri Suraparaju v. Mandapaka Narasimham (1914) 26 I.C. 81. No doubt in Sewdut Roy v. Sree Canto Maity (1906) I.L.R. 33 C. 639, there is an observation by Woodroffe, J., that the attachment before judgment on application to execute the decree becomes attachment in execution. Except for that one observation, I can find no other authority in support of the proposition that the nature of the attachment is altered by the, filing of an execution application. I am not at all inclined to adopt this view in opposition to the authority of the cases above cited.

(2.) In support of the first proposition, reliance is placed on the language of Order XXXVIII, 11 11 of the Civil Procedure Code, which is as follows;-"Where property is under attachment by virtue of the pro visions of this order and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property." No doubt under this rule it would appear at first sight that the attachment must have been completed before the decree was passed in order to give a party the benefit of the rule, that is to say, the benefit of not being obliged to apply for re- attachment of the property, when he wishes to execute his decree. In the present case it is not necessary to consider whether re-attachment was necessary, and we need only consider whether the property was validly attached under Order XXXVIII. Attachment was applied for and an order of attachment was passed before judgment was actually pronounced. But the attachment was not effected until a few days after the date of the decree. This being so, can it be said that there was any attachment before judgment ? No doubt the order was passed under Section 6(1) before the decree, and if the order had been carried out at once, there could have been no doubt in the matter. Can it be said that the fact that there was delay in carrying out the order of the Court has deprived the Court of its powers to make such order effectual ? The scope of Order XXXVIII is unquestionably limited to attachment before judgment, and all its provisions are set forth with a view to securing the plaintiff in the suit up to the time that he obtains a decree. It would be only by applying this limited scope of the order to the present case that we would be justified in ruling that the attachment actually effected after the decree was ineffectual and void. It has been held in Sivakolundu Pilial v. Ganapathi lyyar (1916) 3 Law Weekly 336, that when an application for renewing attachment under Section 46, Civil Procedure Code has been put in before the expiry of the two months prescribed in the proviso to that section and an order of the Court has not been passed until after the two months expired, the date of the application should be deemed to be the date of the order extending time. On the other hand the appellant s vakil relies on Ven-katachalapati Rao v. Kameswaramma (1917) I.L.B. 41 M. 151 : 83 M.L.J. 515., deciding that the written order of the appellate Court staying execution does not take effect from its date but only from the date of its communication to the executing Court. Neither of these cases is really directly in point, and the question has to be decided on general principles. It seems to me that when a Court makes an order under Order 38 Rule 6 of the Civil Procedure Code that order cannot be deprived of all force by the mere failure of th e executive officers of the Court to carry it out before the decree is passed. The attachment when effected is an attachment made in pursuance of an order to attach before judg- ment and must be treated as an attachment before judgment and not as a nullity merely because as a matter of fact the attachment is not completed until after judgment. To adopt the opposite view would be to allow a formal judicial order to be upset by the negligence or default of a subordinate ministerial officer. The language of Order 38 Rule 11 is also in favour of my view, for it does not refer to " an attachment made before judgment " but to an attachment "by virtue of the provisions of this order," and an attachment made in pursuance of an order under Rule 6 could be such an attachment in spite of its being completed after decree. I find therefore that the attachment in the present case was a valid attachment. The claim for damages is certainly premature.

(3.) The Second Appeal is accordingly dismissed with costs. Kumaraswami Sastri, J.