Neela Bai Ammal vs Krishnaveni Ammal

T. Ramaprasada Rao, J.—The civil revision petition has to be allowed.

The decree-holder is the petitioner. She obtained a decree in the City Civil Court, Madras, in O. S. No. 291 of 1970. But prior to the said

decree date, she had filed an application for attachment before judgment of the defendant''s property and on 20th January, 1970 such an

attachment was ordered, as seen from Exhibit B-4, and was effected on 22nd April, 1970, as seen from Exhibit B-5. The Court can safely

presume that the attachment had been effected by reason of the said order. This was followed, as already stated, by the decree on 28th July,

1971. Thereafter, the petitioner, decree-holder sought for a transfer of the decree with the usual certificate of non-satisfaction to the Court of the

District Munsif of Poonamallee. This was on 6th November, 1971. After the transfer was so effected of the decree for purposes of executing the

decree, the petitioner filed E. P. No. 884 of 1971, in the transferee Court, for attachment of the same property and bringing it to sale pursuant to

the money decree obtained by her in the City Civil Court. Necessary orders in the execution petition were issued on 14th December, 1971 and the

attachment of the property was made on 16th December, 1971. Thereafter, the respondent, on the foot of a settlement deed effected by her

husband (judgment-debtor), of the suit property on 10th June, 1970 filed a claim petition on 7th February, 1972 stating that the property cannot

be deemed to be subject to attachment made by the petitioner in the above proceedings, that it ought to be held free from it and that her claim to

the property as evidenced by the settlement deed, as above, should be upheld. The lower Court upheld the same. It is against this, the present Civil

Revision Petition has been filed.

Under Order 38, Rule 5 read with Order 38, Rule 11, CPC the purport and effect of attachment before judgment is fully brought out. Under

Order 38, Rule 5, a plaintiff can file an application before the passing of a decree in his suit for the issuance of a rule by way of attachment before

judgment of the property belonging to the defendant, if according to the plaintiff, the defendant is about to dispose of the whole or any part of his

property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. The Court, if it is satisfied

that the plaintiff has shown his bona fides in the directions as above, may cause the attachment before judgment of the defendant''s property, as

provided for in Order 38, Rule 5. Order 38, Rule 11, provides that where the property is under attachment by virtue of the provisions of that

Order meaning thereby, Order 38, Rule 5 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. Reading the above two Rules together, it is clear that the

attachment before judgment effected pursuant to an order made under Order 38, Rule 5, subsists, and its effect is not in any way impeded or

lessened by the supervening obtaining of a decree by the plaintiff in the very proceedings, and thereafter. It, therefore, follows that an order made

under Order 38, Rule 5, is effective even for purposes of the execution of the decree subsequently obtained by the plaintiff.

Srinivasan, J., in Kuppuswami and Another Vs. Rangai Goundan, , dealing with Order 38, Rules 5 and 11, Civil Procedure Code, observed

that when a party suing obtains a decree against the judgment-debtor, having under Rule 5 of Order 38 obtained an attachment of the property of

the judgment-debtor before the passing of the decree, such attachment enures in favour of the decree-holder and before bringing the property to

sale in execution of the decree it shall not be necessary for him to have the property attached again in the course of execution. This proposition

being well-settled, it is for consideration whether the execution petition filed by the decree-holder subsequently in the Court of the District Munsiff

of Poonamallee, which is the transferee Court, would in any way lessen the rigour and vigour of the order for attachment before judgment, which

had been effected consequent upon the plaintiff obtaining such an order under Order 38, Rule 5. Order 38, Rule 11, is a definite pointer to the

effect that such an order cannot in any way be whittled down in any manner whatsoever. This being the legal position, the fact that the decree-

holder sought for a second attachment and the executing Court gave such an order for attachment and the property was in consequence attached

for a second time on 16th December, 1971 does not in any way thwart the effect of the attachment before judgment obtained by the decree-

holder under Order 38, Rule 5, which subsists for all time and even for the definite purpose of attaching and selling the property in execution of the

decree later obtained by the decree-holder after the order under Order 38, Rule 5, was passed. I am of the view that the attachment made on 16th

February, 1971 on the volition of the decree-holder, cannot in any way belittle the statutory-effect of an attachment before judgment, which

continues, under Order 38, Rule 11, till the decree is satisfied. The attachment made on 16th December, 1971 pursuant to the order of the

executing. Court was redundant and ought to be understood as such. It has no legal impact on the effect and force of the order for attachment

before judgment already obtained by the decreeholder.

Secondly, even on the merits, the respondent cannot succeed. The order for attachment before judgment was made on 20th January, 1970 and

the attachment was effected on 22nd April, 1970 as is seen from Exhibit B-5. The ordinary presumption that official acts should be presumed to

have been done in the regular course would arise in the instant case, and the decreeholder plaintiff should have seen to the implementation of that

order for attachment before judgment, which he ought to have obtained after some effort. Thus importing the presumption u/s 114 (e) of the

Evidence Act, the Court can presume that the attachment was effected on 22nd April, 1970. If, therefore, the settlement was made on 10th June,

1970 which was long after the date when the order for attachment before judgment was issued, then, it ought to be subject to the attachment

already effected pursuant to orders of Court. Even on this ground, therefore, the respondent cannot succeed.

The Court below went on considerations which were irrelevant and went into a discussion whether Section 46, Civil Procedure Code, would

have any impact on the facts of this case, I find that no application u/s 46, Civil Procedure Code, was made at all. The Court below went wrong in

having assumed that such an application was made and in having taken up that matter for consideration in detail.

On an overall appreciation of the settled law on the question, I am of the view that the lower Court ought not to have allowed the claim petition.

The civil revision petition is allowed There will be no order as to costs.