BALARAJU CHETTIAR Vs. MASILAMANI PILLAI

JUDGEMENT

(1.) In this case the property of the judgment-debtor had been attached before judgment. After the attachment the suit was dismissed but no order was passed by the Court releasing the attachment. In appeal, the suit was decreed. The decree-holder sought to bring the property to sale on the strength of the attachment before judgment. The person who had purchased the property from the judgment-debtor after the attachment before judgment intervened with a claim. The learned District Munsif was of opinion that the attachment before judgment was not subsisting. The execution petition was accordingly dismissed. The decree- holder appealed to the Subordinate Judge who held that the attachment subsisted. Against this an appeal was filed which was allowed to be treated as a Civil Revision Petition. It came up before Jackson, J., who referred the question to a Full Bench whether, upon the dismissal of the suit, the attachment before judgment necessarily ceases under Order 38, Rule 9, Civil Procedure Code, or whether that rule merely permits an application to be followed by the order of the Court. He points out that it has been held in Seethai Ammal V/s. Narayana Aiyangar (1928) M.W.N. 710 Abdul Rahman V/s. Amin Sharif (1918) I.L.R. 45 C. 780, Ram Chand v. Pitam Mal (1888) I.L.R. 10 A. 506 and Manackjee V/s. R.M.N. Chettiar Firm (1926) I.L.R. 5 Rule 492 that the attachment ceases but that the opposite, view that the Court's order is necessary is supported by Namagiri Animal V/s. Muthu Velappa Goundan (1928) 56 M.L.J. 70, Rasappa Pillai V/s. Doraiswami Reddiar (1925) 49 M.L.J. 88 and a remark obiter by Wallace, J., in Meyyappa Chettiar V/s. Chidambaram Chettiar (1923) I.L.R. 47 M. 483 at 515 : 46 M.L.J. 415 (F.B.).

(2.) We may perhaps here notice the reasons given by the Subordinate Judge for his conclusion. The learned Subordinate Judge says that the view of the Madras High Court in Meyyappa Chettiar V/s. Chidambaram Chettiar (1923) I.L.R. 47 M. 483 at 515 : 46 M.L.J. 415 (F.B.) is in conflict with Abdul Rahman V/s. Amin Sharif (the reference to 48 Cal. 780 in his judgment appears to be a mistake) but he is incorrect in saying so. As will be pointed out below, the question in Meyyappa Chettiar V/s. Chidambaram Chettiar (1923) I.L.R. 47 M. 483 at 515 : 46 M.L.J. 415 (F.B.) was different. Two of the Judges specifically mentioned the present question obiter, Ramesam and Wallace, JJ., taking different views. So also the learned Subordinate Judge is wrong in his inference from the statement of Phillips, J., at page 1043 of the All-India Reporter, Madras, 1925. "I may also add that, in the opinion of the Judges forming the Full Bench in Meyyappa Chettiar V/s. Chidambaram Chettiar (1923) I.L.R. 47 M. 483 at 515 : 46 M.L.J. 415 (F.B.) attachment before judgment continues in force, until it is put an end to by the Court," This is the same Full Bench case, Meyyappa Chettiar V/s. Chidambaram Chettiar (1923) I.L.R. 47 M. 483 : 46 M.L.J. 415 (F.B.) and the suit had not been dismissed but decreed. The majority of the Full Bench held that the attachment which therefore remained in force was the same attachment, under which the execution proceeding's were taken and therefore, on default of the decree-holder in execution proceedings, lapsed under Order 21, Rule 57. The argument which the Subordinate Judge deduces from Rule 14 was urged in Abdul Rahman V/s. Amin Sharif (1918) I.L.R. 45 C. 780 at 784 and was" rejected. His final argument drawn from a claim petition has also been considered in Protap Chandra Gope V/s. Sarat Chandra Gangopadhyaya (1920) 25 C.W.N. 544 and distinguished. The learned Subordinate Judge says: When a claim is allowed, an attachment in execution is withdrawn. What happens when a claimant fails in the regular suit? Is not the attachment revived?

(3.) In Protap Chandra Gope V/s. Sarat Chandra Gangopadhyaya (1920) 25 C.W.N. 544, in which it was held that such an attachment was revived, Mookerjee, J., has distinctly distinguished that case from one where the suit has been dismissed and where, therefore, the attachment should have been withdrawn by the Court under Order 38, Rule 9. Mookerji, J., says at page 547: We are not unmindful that a different rule has been adopted with regard to attachments before judgment. There the view has prevailed that it is obligatory upon the Court to withdraw an attachment before judgment upon the dismissal of the suit, and the reversal of the judgment of dismissal on appeal does not operate to revive an attachment which has been cancelled. As explained in the case of Sasiroma V/s. Meherban (1911) 13 C.L.J. 243 this result follows from the provisions of Order 38, Rule 9, which directs the withdrawal of attachment on dismissal of the suit and contains no provision which makes such withdrawal temporary and liable to be vacated on reversal of the decree of dismissal; in other words, Order 38, Rule 9 contains no provision corresponding to Order 21, Rule 63, which makes the order in the claim case and the release from attachment thereupon subject to the result of a regular suit. Consequently, in a case of attachment before judgment, the general rule applies that a revival of execution proceedings docs not operate as a revival of the attachment so as to prejudice the rights of strangers who have in the interval acquired a title to the property.