Bank of Baroda vs Anand Woollen Mills Pvt. Ltd. and Others

V.K. Jhanji, J.—This suit filed by the petitioner under Order 34, Code of Civil Procedure, was decreed. The petitioner in order to recover the amount under the decree filed an application for execution of the decree.

During the pendency of execution proceedings, an application for attachment of amount belonging to judgment-debtors lying in the Customs and Excise Board was filed. The application was contested'' by the decree-holder and the same was dismissed as the Executing Court was of the view that such an application is not maintainable till the mortgaged property is sold. Moreover, no document of the Customs and Excise Board was filed from which it could be inferred that a sum of Rs. 15 lacs is to be paid by the Customs and Excise Board to the judgment-debtors.

After hearing learned counsel for the petitioner, I am of the view that the observations of the learned trial court that such an application for attachment of aforesaid amount is not maintainable till the mortgaged property is sold, is not tenable. Counsel for the respondents has not brought to ray notice any provision of law under which such an attachment is not maintainable. The Court in order to safe-guard the interest of the decree-holder can always attach any other property apart from the property which was mortgaged to the decree-holder. However, the trial Court is justified in saying that the application for attachment is not maintainable because of want of particulars. In case, a fresh application is filed for attachment of the amount lying with the Customs and Excise Board belonging to the judgment-debtors giving full particulars, the trial Court shall order attachment of the said amount and the amount shall be paid to the decree-holder only after the amount to be realised from the sale of the mortgaged property is not found sufficient to satisfy the decree. The order of the trial Court is modified to this extent, and the revision petition is disposed of accordingly.