Sh. Iqbal Singh vs Sh. Santokh Singh

D.V. Sehgal, J.—The Petitioner filed a suit for recovery of money. During its pendency he made an application under Order XXXVIII, Rule 5, CPC (for short ''the Code'') for attachment of property of the Defendant-Respondent before judgment which was allowed and the property of the Respondent was attached. The suit was ultimately decreed on 12.9.1987. The Respondent filed an appeal against that decree. The learned Appellate Court stayed the execution of the decree on the condition that the Respondent furnished security in the trial Court for its satisfaction. The security was duly furnished by the Respondent.

The Respondent made an application before the trial Court that since he had furnished security in compliance with the orders of the Appellate Court, the attachment of his property effected before judgment should be withdrawn. This application of the Respondent has been allowed by the learned trial court vide order dated 18.2.1988. The Petitioner is aggrieved against this order and has approached this Court by way of the present revision petition.

The learned trial Court has relied on the provisions of Rule 9 of Order XXXVIII of the Code which provides that where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn when the Defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed. The provision of Rule 9 ibid, however, are not applicable after the suit had been decreed. In fact, an attachment of property before judgment under Order XXXVIII, Rule 5 of the Code, where the suit is subsequently decreed in favour of the Plaintiff, takes effect as an attachment in execution of the decree. This is clear from the provisions of Rule 11 of Order XXXVIII of the Code. Attachment of property of the judgment debtor in execution of the decree is not to be withdrawn when its execution is stayed by the Appellate Court and even when in compliance with the order of the Appellate Court the judgment-debtor Appellant furnishes security for its satisfaction particularly when there is no order by the Appellate Court to vacate the attachment. I am, therefore, of the considered view that the learned trial Court had ommitted an illegality in exercise of its jurisdiction by relying on the provisions of Rule 9 ibid to pass the impugned order.

Consequently, this revision petition is allowed without any order as to costs, and the order dated 18-2-1988 passed by the learned Sub-Judge Ist Class, Ludhiana, is set aside.