O. Laxmireddy vs Vadla Veeraiah

This revision petition is filed by the plaintiff being aggrieved by the Order and Decree dated 17-3-1999 in IA No.372 of 1998 in OS No.85 of 1998 on the file of the Principal Junior Civil Judge, Nandikotkur. By the impugned order and decree, the Court below dismissed the I.A. of the plaintiff for attachment before judgment.

The Court below observed that the defendant is a carpenter and an Agriculturist and the house in question is the only residential house, and the same is not liable for attachment and sale u/s 60(1)(c) of CPC. The Court below relied upon a judgment of this Court reported in C. Ramaiah v. Guravaiah, 1987 (1) APLJ (SNRC) 15.

Heard the learned Counsel of both sides. The Counsel appearing for the petitioner-plaintiff strenuously contended that the Court below has erred in applying the principles of Section 60(1)(c) CPC to an application now filed by the petitioner-plaintiff for attachment before judgment under Order 38, Rules 1 and 5 CPC.

He submits that Section 60 of the CPC does not apply to the application filed for attachment before judgment under Order 38, CPC. Therefore, the impugned order is liable to be set aside.

On the other hand, the learned Counsel appearing for the respondent-defendant contended that the principles found in Section 60 of CPC are equally applicable to the order of attachment before judgment contemplated under Order 38, Rules 1 and 5 CPC. He relied upon a judgment of this Court reported in V. Balakrishtaiah v. M. Venkata Chalam, 1974 (1) An. WR 168.

He further submitted that this benefit conferred by Section 60(1)(c) can not be waived even if the defendant so chooses by any agreement. He relied upon a judgment of this Court reported in Duggirala Balarama Krishnayya Vs. Arokapudi Jagannadha Rao, . He further submits that Section 60(1)(A) also incorporates the same principles. Accordingly, he submitted that, absolutely there are no merits in this revision petition.

In order to appreciate the rival contentions, I have to note a few facts of this case. As per the evidence of DWs.1 and 2 and PW2, it is revealed that the present defendant is a Carpenter and is doing Carpentry work for the Ryths of the village, besides making cards, ploughs etc., and he is residing in the house, which is sought to be attached. Apprehending that the defendant is making an attempt to sell al the property, the plaintiff filed the present IA No.372 of 1998 under Order 38, Rules 1 and 5 CPC for attachment before judgment.

On the basis of these undisputed facts, the learned Counsel of both sides, sought to make out their respective contentions. Therefore, the short point for my consideration would be : whether the benefits conferred u/s 60(1) proviso (c) would apply to an order of attachment under Order 38, Rule 5 CPC.

These is no indication u/s 60, as to whether the benefits conferred by proviso to Section 60(1) would apply to the proceedings under Order 38, Rule 5 CPC.

The learned Counsel for the petitioner-plaintiff strenuously contended that Section 60 would apply only after the decree is passed, and such attachment in pursuance of the decree u/s 60(1) CPC would be for the purpose of attachment and sale, whereas in the instant case, an attachment before judgment is sought, and if the defendant agrees to furnish security, even there may not be attachment before judgment. Thus he contended that the benefits conferred by the proviso to Section 60(1)(c) CPC would not apply to Order 38, Rule 5 CPC.

From a reading of Order 38, Rule 7 CPC, I find that even for the attachment before judgment, the attachment shall be made in the manner provided for the attachment of the property in execution of a decree. Even Rule 8 of Order 38 also is on the same lines. I think it is appropriate to extract both the Rules 7 and 8 of Order 38, as under:

Rule-7: "Save as otherwise expressly provided, the attachment shall be made in the manner provided for the attachment of property in execution of a decree."

Rule-8: "Where any claim is preferred to property attached before judgment, such claim shall be adjudicated upon in the manner herein before provided for the adjudication of claims to property attached in execution of a decree for the payment of money."

From a reading of the above two clauses, it is clear that the procedure prescribed for attachment and sale of the property in pursuance of a decree found u/s 60 is made applicable to the attachment before judgment also. From this it follows that the benefits conferred under the proviso to Section 60(1) would be also applicable to the attachment before judgment under Order 38, Rule 5.

The learned single Judge of this Court in the judgment reported in V. Balakrishtaiah v. M. Venkata Chalam, 1974 (1) An. WR 168, referred supra, took a similar view, but for different reasons, as under:

"It is thus quite manifest that the attachment before judgment is only to aid in advance the execution of any decree that may be passed in a suit. Such being the object and purpose of attachment contemplated by Rule 5 of Order 38. I do not see any reasons why the prohibition contained in the proviso to Section 60(1) Civil Procedure Code, should not apply to attachments before judgment. In my opinion, the same prohibition applies to attachment under Order 38(5) also. No decision is placed before me, which takes a contrary view".

Though His Lordship did not specifically take into consideration, Rule 7, as it stood even before the amendment, but the conclusions arrived at are consistent to the provisions of both Order 38 and Section 60 of CPC. Moreover, even by 1976 amendment, Rule 8 has been incorporated under Order 38, enabling the objector to raise objections, even regarding attachment before judgment, as per the provisions under Order 21, Rules 58 and 59 of CPC etc. From this it follows that the intention of the Legislature is to provide benefits conferred by the proviso to Section 60(1) CPC even to the attachment before judgment. Suppose, if the defendant were not claim the benefits conferred by the proviso to Section 60(1) CPC at the time of attachment before judgment, he would not be entitled to the proviso to Section 60(1) CPC at the time of execution after the final decree. In fact in Nar Singh Datt Vs. Ram Pratap and Others, , it was held that if an objection regarding attachment of the property was not taken at the time of attachment, the same cannot be raised at the time of sale, on the basis of principles of res judicata. This judgment also reinforces my conclusion that the benefits conferred by proviso to Section 60(1) could be availed of and could be pressed into service, even at the time when the attachment before judgment is sought under Order 38, Rule 5 CPC seen from any angle, in my humble opinion, the benefits conferred by Section 60(1) proviso (c) would be available even at the time of attachment before judgment under Order 38, Rule 5 CPC.

In this view of the matter, I do not think that there is any error in the impugned order. The Court below has rightly relied upon the Judgment of this Court reported in C. Ramaiah''s case referred (supra) for its conclusion that the Carpenter being an Artisan was entitled to the benefits of proviso to Section 60(1)(c) CPC.

For the above reasons, I pass the order as under:

The Revision petition is dismissed, but in the circumstances no costs.