Daggupati Nayudamma vs Salt Sivaraju Dharamchand Kottuvaru and Another

Kuppuswami Ayyar, J.—The only question for consideration in these two appeals is whether the attachment before judgment effected in a

suit can be availed of by a plaintiff decree-holder whose suit was originally dismissed by the trial Court but was decreed subsequently allowing a

review petition filed by him.

The appellants in both these appeals are purchasers from the judgment-debtor in O.S. No. 37 of 1931 on the file of the Subordinate Judge''s

Court, Tenali. That was a suit on a promissory note executed by a lady. The properties in dispute in both these appeals were attached before

judgment at the instance of the plaintiff. The suit was dismissed on the ground that the thumb impression in the document was not that of the

defendant. The parties proceeded under the impression that the impression was that of the left thumb, but it was subsequently discovered that the

impression was that of the right thumb; a review application was filed and the review was allowed. After the review was allowed, evidence was led

to show that the impression was that of the right thumb and a decree was passed. These two appellants have purchased subsequent to the passing

of the decree after review the properties that were attached and their claim petitions filed in the proceedings to execute the decree passed after

review were dismissed. They filed suits to set aside those summary orders and it is out of these suits these appeals arise. Their contention was that

the attachment had terminated when the suit was dismissed and was not revived by the subsequent allowing of the review and cannot therefore be

availed of in execution of the decree passed after the review was allowed. Both the Courts found against the appellants. Hence this second appeal.

In Balaraju Ckettiar v. Masilamony Pillai (1929) 58 M.L.J. 675 : ILR Mad. 334 the question had to be considered with reference to a decree

obtained on appeal reversing the decree of the first Court dismissing the suit. It was held that it was not necessary that an express order terminating

the attachment should be passed and that the attachment automatically ceased on the termination of the suit and therefore cannot be availed of by

the decree-holder in execution of the decree passed on appeal. At pages 350 and 351 stress is laid on the fact that the decree passed in the suit

was a decree passed not by the trial Court but by the appellate Court and that the attachment was effected only for the benefit of the decree that

might be passed by the trial Court. The same question had to be considered by a Full Bench of this Court in Veerasami v. Ramanna (1934) 68

M.L.J. 444 : ILR Mad. 721 but in that case the original decree was vacated by the dismissal of the suit for default. The dismissal order was

subsequently set aside and it was held that on the restoration of the suit all the ancillary orders got revived and the attachment was available to the

decree-holder who obtained a decree after the restoration of the suit. It was urged for the appellant in this case that on the dismissal of the suit

before the review petition was allowed, the attachment had been terminated, and it cannot be said that the allowing of the review amounted to a

restoration of the proceedings in the suit so as to enable the plaintiff who subsequently obtained a decree to have the benefit of the ancillary order

which had become inoperative by the dismissal of the suit. If the principle in that case is to be applied to the facts of this case, it can be applied

only if by the allowing of the review the suit is to be considered to have been restored, and the decree already passed to have been set aside. If the

decree dismissing the suit automatically puts an end to the attachment by reason of the dismissal of the suit, then the attachment in the case of

dismissal of a suit for default also must have that effect. When it is made available for the plaintiff who subsequently obtains a decree after the

restoration of the suit, it is only on the fiction that the ancillary orders also get restored. It is contended for the appellant that such a fiction cannot

be had in the case of a decree which is revised by the same Court after allowing a review, his contention being that it is not a case of restoration of

the suit but only a revision of the decree already passed. He relies for this on the observations in Achyut Vishnu v. Tapibai ILR (1923) 48 Bom.

210 where it was pointed out that the allowing of a petition for review of an appellate decree did not have the effect of restoring the decree of the

first Court but only kept the appellate decree in abeyance. In that case the only question that had to be considered was whether on the allowing of

the review the decree of the original Court should be considered to have been restored; but it did not expressly decide the question whether the

appeal must be considered to be pending or not. The learned advocate for the respondent rightly contends that on an order allowing the petition

for review being passed, the old decree is set aside and the suit is restored to file and a fresh decree will have to be passed. This was pointed out

in this Court by Pakenham Walsh, J., in Achambat Abdurahiman, minor, by his mother Thithachumma and Another Vs. Kelavarman Puthentheruvil

Kizhakkayil Imbichunny (dead) and Gopalan added as L.R. of 1st Respondent, following the observations made by a Bench of the Bombay High

Court in Vadilal v. Fulchand I.L.R.(1905) 30 Bom. 56. As pointed out there, there are three stages in a review application. At the first stage it is in

the nature of an ex parte application and the Court may either reject the application at once or grant a rule calling on the other side to show cause

why the review should not be granted. In the second stage the rule may either be admitted or discharged and the hearing of the rule may involve to

some extent an investigation into the merits. If the rule is discharged, then the case ends. If on the other hand, the rule is made absolute then the

third stage is reached; the case is re-heard on the merits and may result in a repetition of the former decree or in some variation of it. In Vadilal v.

Fulchand I.L.R.(1905) 30 Bom 56 it was pointed out that even if there is to be a repetition of the old decree it is not the old decree but it is a fresh

decree. The case-law on this point was considered by the Calcutta High Court in Gour Krishna Sircar and Another Vs. Nilmadhab Saha and

Others, and after citing Vadilal v. Fulchand I.L.R.(1905) 30 Bom 56 Nanhe v. Mangat Rai (1913) 20 I.C. 647 Golab Chand v. Janki Koer ILR

(1913) Cal. 286 Aryalpurath v. Cheekiladen Ahmed (1909) I.C. 204 and Gour v. Rakhal (1916) Cri.L.J. 326 the learned Judges observed as

follows:

These decisions are authorities for the proposition that when the application for review is granted, the decree previously made is vacated.

In this case the moment the review was allowed the decree already passed was vacated and the suit must be considered to have been restored to

file and with the restoration of the suit all the ancillary orders also get restored and the decree passed subsequently is the decree of the trial Court

itself.

Both the Courts below were hence right in finding that the attachment revived and enured for the benefit of the decree-holder who obtained the

decree subsequently after the review petition was allowed.

In the result the second appeals fail and are dismissed with costs.

Leave refused.