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Madanlal Chhotelal and ors. Vs. Ramprakash Ghasiram - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMadhya Pradesh High Court
Decided On
Case NumberLetters Patent Appeal No. 18 of 1961
Judge
Reported inAIR1963MP329; 1963MPLJ553
ActsCode of Civil Procedure (CPC) , 1908 - Order 38, Rules 9 and 11
AppellantMadanlal Chhotelal and ors.
RespondentRamprakash Ghasiram
Appellant AdvocateK.A. Chitale, Adv.
Respondent AdvocateR.G. Waghmare, Adv.
DispositionAppeal dismissed
Cases ReferredBalaraju Chettiar v. Masilamani Pillai
Excerpt:
- indian penal code, 1890.section 306 :[dalveer bhandari & harjit singh bedi,jj] abetment of suicide deceased, a married woman, committed suicide - allegation of abetment of suicide against appellant husband and in-laws - ocular evidence was sketchy - dying declaration recorded by tahsildar completely exonerated all accused in-laws of any misconduct dispelling any suspicion as to their involvement - letter of threat allegedly written by appellant to father of victim was concocted piece of evidence held, though presumption against appellant can be raised, it cannot be said that onus shifts exclusively and heavily on him to prove his innocence. conviction of appellant is liable to be set aside. - - (1) where, at any stage of a suit, the court is satisfied by affidavit or otherwise,.....p.k. tare, j.1. this appeal involves the only question whether in a suit the attachment before judgment effected, which terminates on the dismissal of the suit by the trial court, is automatically revived by the fact that the appellate court, reversing the dismissal of the suit, passes a decree in favour of the plaintiffs.2. the appellants in their money suit against the respondent secured an attachment before judgment from the trial court, ultimately, the suit was dismissed. upon an appeal, the first appellate court decreed the plaintiffs' claim by reversing the judgment of the trial court. thereafter, the appellants took steps to get a proclamation of sale issued without securing a fresh order of attachment from the executing court. the respondent-judgment-debtor raised an objection.....
Judgment:

P.K. Tare, J.

1. This appeal involves the only question whether in a suit the attachment before judgment effected, which terminates on the dismissal of the suit by the trial Court, is automatically revived by the fact that the appellate Court, reversing the dismissal of the suit, passes a decree in favour of the plaintiffs.

2. The appellants in their money suit against the respondent secured an attachment before judgment from the trial Court, Ultimately, the suit was dismissed. Upon an appeal, the first appellate Court decreed the plaintiffs' claim by reversing the judgment of the trial Court. Thereafter, the appellants took steps to get a proclamation of sale issued without securing a fresh order of attachment from the executing Court. The respondent-judgment-debtor raised an objection that the property could not be sold without & fresh order of attachment. The executing Court, as also the first appellate Court, held that anappeal being a continuation of the suit, the appellate decree revived'the attachment before, judgment effected in the suit. The learned Single judge reversed that view of the Courts below and upheld the judgment-debtors's objections. The answer to this question depends on the interpretation of the phrase when the suit is dismissed' occurring in Order 38, Rule 9. Civil Procedure Code.

3. There is a conflict of views on this question. I propose to discuss the question in all its aspects in view of the conflict Order 38 Rule 9, Civil Procedure Code is as under:-

'Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawan when the defendant furnishes the security required, together with security for the costs of the attachment, or when the suit is dismissed.'

It is the last phrase which needs to be interpreted in the present case.

4. it would be relevant to consider the provisions of Order 38 Rule 5, Civil Procedure Code for the purpose of a proper understanding of the provisions of Order 38 Rule 9, Civil Procedure Code. The said rule is as follows:-

'(1) Where, at any stage of a suit, the Court is satisfied by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, --

(a) is about to dispose of the whole or any part of his property, or

(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court,

the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.'

Further on Rule 6 of Order 38 provides that where the defendant fails to show cause why he should not furnish the security required, within the time fixed by the Court, the Court may order that the property may be attached for the satisfaction of any decree which may be passed in the suit. Where the defendant shows such cause or furnishes the required security, the Court is required to withdraw the attachment or pass such further order as it may deem fit.

As regards the manner of attachment, Rule 7 provides that the same procedure shall be followed as is applicable to an execution of a decree. Rate 8 provides for investigation of objections or claims in respect of the property attached. Further on Rule 10 provides that the rights of other decree-holders to proceed to sell the property of the judgment-debtor which has been attached shall not be affected by such attachment before judgment. Further on, Rule 11 of Order 38 is relevant. It is as follows: -

'Where property is under attachment by virtue of the provisions of this order 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.'

It is this rule which I have to consider along with Rule 9 of Order 38, Civil Procedure Code.

5. Before I consider the instant question, I think it proper to dispose of another point which incidentally arises on account of the observations made by the learned Additional District Judge. The learned Judge observed that assuming that there is no revival of the attachment before judgment, failure to effect attachment would not render the auction sale null and void, but would be a mere irregularity, which would affect, the auction sale only if it could be shown to amount to a material irregularity resulting in substantial injury to the judgment-debtor within the meaning of Rule 90 of Order 21 of the Civil Procedure Code.

The learned counsel for the appellants urged that even assuming that the first point is decided against them, a consideration of the second question was necessary by the learned Single Judge, as the decision of' the first point does not conclude the case. Similarly, the learned counsel for the appellant urged that we should consider the second, point if our decision on the first point affirms the view of the learned Single Judge. On the other hand, the learned counsel for the respondent urged that leave under Clause 10 of the Letters Patent having been restricted to the sole point decided by the learned Single Judge, no other point can be considered by this Division Bench. Therefore, it is necessary for me to consider this aspect regarding the second question sought to be raised by the learned counsel for the appellants.

6. in this connection, it is to be noted that it is always open to a Single Bench granting leave for filing appeal under Clause 10 of the Letters Patent to restrict the leave to a particular point. If leave is so restricted, the appellants in the Letters Patent Appeal cannot be permitted to urge any other point. Also if the appellants in the Letters Patent appeal do not urge other, points before the Single Bench, they cannot be permitted to raise them in the Letters Patent Appeal, as laid down by a Full Bench of this Court in Section Kanhaiyalal v. Jerome D' Costa, ILR 1955 Nag 833 : ( (S) AIR 1955 Nag 302), which view has been consistently followed by the Madhya Pradesh High Court, as is clear from the cases of D. N. Sethi v. Dr. Miss J. D. Sharma, 1960 M. P. L. J. 382 and Ghasia v. Dayaram, L. P. A. No. 123 of 1958, D/- 24-10-1960 : 1961 M.P.L.J. (NC) 27. Therefore, I have to examine whether the learned Single Judge was at all required to consider the other point sought to be raised by the appellants before us.

7. Analysing the order of the Single Bench I find that the only point pressed before him wasas to the interpretation of the words 'when the suit is dismissed' as used in Order 38 Rule 9, Civil Procedure Code. The learned Judge decided Chat point by observing that an attachment before judgment would not be revived if the appellate Court passes a decree reversing the dismissal of the suit. The learned Judge also granted leave to file Letters Patent Appeal. While doing this, the learned Judge also decided that the appeal was bound to be allowed as a result of the finding on the only question raised. In that view the order under appeal was set aside and the case was sent back to the executing Court for decision hi accordance with law.

8. The executing Court, as also the first appellate Court has relied on the case of Dhainsingh v. Secretary of State ILR 1945 Nag 121 referred to by them as AIR 1945 Nag 97 to hold that an attachment before judgment effected with out complying with the directions 01 Order 38 Rule 5 was not void and ineffective as being beyond the jurisdiction of the Court making it, but it would be voidable as a mere irregularity in the exercise of the Court's jurisdiction which could be challenged by the person affected by it and by no one else. It is, therefore, clear that if an auction sale without effecting attachment be a mere irregularity, it must amount to a material irregularity resulting in substantial injury to the judgment-debtor within the meaning of Order 21 Rule 90, Civil Procedure Code to enable a judgment-debtor to have the sale set aside. The said case is a Division Bench case which is based on the earlier view of the Nagpur High Court and some earlier Privy Council cases.

In this connection I may only observe that a consideration of this question is premature. It may properly arise after an auction sale is held. On account of the stay order passed by the Single Bench no auction sale has yet been held. The implication of this ruling is not that an auction sale should be held without following the procedure laid down by Order 21 Rule 54, Civil Procedure Code. Even though the provision might be considered to be directory in nature, it has to be followed, if the auction sale has not yet been held. Therefore, I am of opinion that the observation of the learned Additional District Judge can not have the effect of dispensing with the need for attachment, if the view of the learned Single Judge is ultimately upheld.

9. Coming to the question of revival of the attachment before judgment, I may, at the outset observe that the majority of the High Courts in a series of cases have taken the view that the word 'suit' in Order 38 Rule 9 and Order 38 Rule 11, Civil Procedure Code relates to the suit at the original stage. According to them, the word 'suit' cannot be interpreted to include an appeal, although for certain purposes an appeal would be a mere continuation of the suit, or a rehearing of the suit, as laid down by Their Lordships of the Supreme Court in Chunilal Khushaldas v. H. K. Adhyaru, (S) AIR 1956 S. C. 655. J, first propose to consider the contrary view that there is revival of attachment as expressed by the Madras, the Pepsuand the Travancore Cochin High Courts in T. Veeraswaini v. P. Ramanna, ILR 58 Mad, 721 : AIR 1935 Mad 365 (FBJ; Karora Singh v. Baburam,' AIR 1952 Pepsu 22, and Muhammad Abdulkhadhir v. Padmanabha Pillai AIR 1952 Trav-Co. 414 (FB).

10. The case of ILR 58 Mad 721 : AIR 1935 Mad 365 (FB) is easily distinguishable from the present case inasmuch as in that case a suit was dismissed in default. Before such dismissal, attachment before judgment had been effected. Upon an application for restoration of the suit to file, the suit was restored. For that reason, it was held by the learned Judges constituting the Full Bench that all interlocutory or ancillary proceedings in the suit were revived. The learned Judges distinguished that case from the earlier Full Bench case of Balaraju Chettiar v. Masilamani Pillai, ILR 53 Mad 334 : AIR 1930 Mad 514. Therefore, the said case being distinguishable on facts, cannot be an authority for the facts of the present case.

11. The case of AIR 1952 Pepsu 22 decided by Chopra J. was similarly a case of a suit dismissed in default being restored. As such, it was similar to the Full Bench case of ILR 58 Mad 721 : AIR 1935 Mad 365 (supra).

12. The Full Bench case of AIR 1952 Trav-Co. 414 (supra) is the only case taking the contrary view, which involved the question concerned in the present case. The learned Judges, referring to the Full Bench case of ILR 53 Mad 334 : AIR 1930 Mad 514 (supra), observed that if the position enunciated in the Madras case were to be accepted as correct, it would lead to difficulties. In case the suit was decreed by the trial Court and dismissed by the first appellate Court, then Rule 9 alone regarding withdrawal of attachment could be made applicable.

The learned Judges opined that it must be far from the intention of the. Legislature to pass an enactment that will lead to such obvious difficulties and, therefore, it would be the duty of the Court to interpret the provisions in the statute in such a way as to give them a reasonable and practical meaning. Further, the learned Judges observed that it is now a concluded theory that proceedings in appeal are only continuation of the proceedings in the suit and that the decree of the appellate Court must be taken as the decree in the suit. Therefore, the learned Judges interpreted the word 'suit' in Order 38 Rule 9, Civil Procedure Code to mean an appeal as well. Hence, the Full Bench of the Travancore-Cochin High Court did not accept the view as represented by the Full Bench case of the Madras High Court in ILR 53 Mad 334 : AIR 1930 Mad 514 (supra) and other cases as the correct view.

13. I now propose to examine the cases propounding the view that an attachment before judgment is not automatically revived upon the suit being decreed by an appellate Court. The Full Bench case of ILR 53 Mad 334 : AIR 1930 Mad 514 (supra) overruled the earlier case of Namagiri Animal v. Muthu Velappa, AIR 1928 Mad 940. While dismissing the suit, the trial Court in the said Full Bench case had not passed any order withdrawing the attachment. The learned Judges of the Full Bench held that it was immaterial. The order of attachment before judgment wouldterminate because of the dismissal of the suit and the same would not be revived even though the appellate Court passed a decree in favour of the attaching plaintiff. It is necessary to examine the reasoning of the learned Judges of this Full Bench, which is based on some earlier cases and which view has been followed in some later cases of the different High Courts. The learned Judges first considered the question whether the attachment before judgment would terminate, even though no formal order of withdrawal was passed by the trial Court while dismissing the suit.

According to them, such a formal order would not be necessary and the attachment would terminate no sooner the suit is dismissed by the trial Court. The learned Judges thought that it would be too wide a proposition to say that an appellate decree per se would restore all the interlocutory orders passed in the original suit, as, in their opinion, the object of attachment being merely to satisfy any decree which may be passed in the suit, the provisions of Rules 5 and 6 of Order 38 should be read along with the provisions of Order 9, Civil Procedure Code; and upon such reading it would seem clear that so far as the attachment contemplated is concerned, the' decree passed in the suit would mean the decree passed by the trial Court alone, and not the appellate Court. If it were the decree which might be passed in appeal, there would be no reason why the attachment should be withdrawn merely because the suit is dismissed by the trial Court and still less would there be any reason for making it mandatory for the Court to withdraw such an attachment.

Therefore, in the opinion of the learned Judges, the attachment evidently is for a purpose which depends on the decree of the trial Court. If the trial Court decrees (sic) (dismisses) a suit, attachment ceases, although no formal order of withdrawal might be passed and the attachment so terminated would not be revived, even though the appellate Court might decree the plaintiffs' claim.

14. The said Full Bench case of ILR 53 Mad 334 : (AIR 1930 Mad 514) (supra) is based on the earlier case of Ram Chand v. Pitam Mal, ILR 10 All 506 decided by a Division Bench consisting of Broadhurst and Mahmood, JJ., wherein the attachment had not been formally withdrawn when the suit was dismissed by the Court of first instance. Later, when it was decreed by the appellate Court, the decree-holders proceeded to put the property to auction sale without a formal attachment. However, the learned Judges held that the attachment terminated with the dismissal of the suit and was not revived by the fact of a decree being passed by the appellate Court. Moreover, it was further held that the omission to effect formal attachment would, at the most, be a material irregularity in publishing or conducting the sale and there would be no greater significance than that.

The auction sale held without effecting attachment would not be void. There has been a controversy as to what the effect of a failure to pass a formal order of withdrawal of attachment would be. Subsequently, the same view finds support in several other cases. In D. Manackjee v. R. M. N. Chattyar Firm (1), ILR 5 Rang 492 : (AIR 1927 Rang 310) a Division Bench held that because the attachment before judgment ceases upon dismissal of the suit by the Court of first instance, a surety for the judgment-debtor was discharged from his liability.

In Pindi v. U. Thama, ILR 9 Rang 472 : (AIR 1931 Rang 281 (2), the learned Judges constituting the Division Bench went to the extent of laying down that an attachment before judgment which terminates due to the dismissal of the suit in de-fault would not be revived even if the suit be subsequently restored to file. In Abdur Rahman v. Amir Sharif, ILR 45 Cal 780 : (AIR 1918 Cal 39), the learned Judges constituting the Division Bench agreed with the view expressed by Mahmood, J., in ILR 10 All 506. In Sailesh Chandra Dutta v. Joy Chandra Roy, AIR 1925 Cal 1147 a Division Bench held that as the attachment before judgment terminates with the dismissal of a suit, a person objecting to attachment need not file a suit within one year of the rejection of his objection, as the attachment itself did not survive the dismissal of the suit. In that view a subsequent suit for declaration of title to the property was held to be within time.

In Dular Singh v. Ramchander, AIR 1934 All 165 Rachhpal Singh, J., held that as the attachment before judgment terminated with the dismissal of the suit, any transfer effected by the judgment-debtor subsequent to the dismissal of the suit and before the passing of a reversing appellate decree would not be void under Section 64 of the Civil Procedure Code. In Ghulam Dastgir v. Mohammad Amin, AIR 1937 Allahabad 682 Harries, J., followed the view of Mahmood, J., as expressed in the case of ILR 10 All 506 and the Full Bench case of ILR 53 Mad 334 : (AIR 1930 Mad 514), although the surety was held liable on the terms of the bond even though the suit was dismissed by the trial Court and decreed by the appellate Court.

In Jali Basappa v. Heerada Rudrappa, AIR 1939 Mad 167 Burn, J., held that an attachment before judgment which terminates with the dismissal of the suit is not revived by the restoration of the suit to file and if in the meantime, the judgment-debtor alienated the property, the transfer would not be void. The reasoning adopted in these cases is based on the reasoning of Mahmood, J., though it was required to be applied to different situations.

15. The case of Protap Chandra v. Saratchandra, AIR 1921 Cal 101 decided by a Division Bench consisting of Mookerjee, Acting C. J., and Fletcher, J., was a case of a transfer effected by a. judgment-debtor after the property was released from attachment under Order 21 Rule 60, Civil Procedure Code, but before the declaratory suit under Order 21 Rule 63 was filed by the attaching decree-holder. The learned Judges held that if in the declaratory, suit the decree-holder succeeded in establishng his right of attachment, the transfer would be void under Section 64 of the Civil Procedure Code.

16. However, a Full Bench of the Mysore High Court in Gangappa v. Boregowda, (S) AIR 1955 Mys 91, dissenting from the Full Bench view of the Travancore Cochin High Court in AIR 1952 Trav-Co 414, discussed the case law exhaustively and rejected the view as propounded in the said Full Bench case and held that merely because the appellate Court might decree the claim, the attachment before judgment, which is deemed to have terminated by virtue of dismissal of the suit, cannot be said to have been revived by the passing of the appellate decree. Similarly, a Division Bench of the Andhra Pradesh High Court consisting of Chandra Reddy and Krishna Rao, JJ., in Kumaji Sare Mal Firm v. Kahwa Devadattam, AIR 1958 Andhra Pra 216 rejected the view of the Full Bench of the Travancore-Cochin High Court and agreed with the view propounded by the Full Bench of the Madras High Court in ILR 53 Mad 334 : (AIR 1930 Mad 514).

It appears that the Full Bench case of the Mysore High Court, that is, (S) AIR 1955 Mys 91 was not brought to the notice of the learned Judges. It will thus be seen that even Full Benches of at least two High Courts are unanimous in dissenting from the view of the Full Bench of the Travancore-Cochin High Court in AIR 1952 Trav-Co 414.

17. If it be solely a question of interpretation I may observe that there is much to be said in favour of either of the interpretations, both of them being plausible. If the question were to be decided on the basis of stare decisis, the law as understood by the different High Courts has been as propounded by the Full Benches of the Madras and the Mysore High Courts, while the full Bench of the Travancore-Cochin High Court is the solitary instance where a contrary view has been taken. Therefore, both the interpretations being plausible, I feel that the real criterion would be to test both the views by applying them in some contemplated selected situations and tn uphold that interpretation which would withstand such a test.

18. Adopting the view that the word 'suit' (occurring in Order 38 Rule 9) means the original suit only, and the 'decree' referred to in Order 38 Rule 11, Civil Procedure Code is the decree of the trial Court alone, I may conceive of the following situations. It would be of interest to note the consequences arising therefrom:-

Trial Court

First Appellate Court.

Second AppellateCourt.

Effect on attachmentbefore

judgment.

(a) Suit decreed

Suit decreed

Suit decreed

Attachmentsurvives.

(b) Suit decreed

Suit dismissed

Suit decreed

Attachment survives.

(c) Suit dismissed

Suit dismissed

Suit decreed

Attachment does notsurvive.

(d) Suit dismissed

Suit decreed

Suit decreed

Attachment dose notsurvive.

(e) Suit dismissed

Suit dismissed

Suit dismissed

Attachment does notsurvive.

(f) Suit decreed

Suit dismissed

Suit dismissed

Attachment survives butno occasion to enforce it.

(g) Suit decreed

Suit decreed

Suit dismissed

Attachment survives butno occasion to enforce it.

(h) Suit dismissed

Suit decreed

Suit dismissed

Attachment does notsurvive.

Therefore, according to this interpretation, the attachment will survive only where the trial Court may have correctly or incorrectly passed a decree in favour of the plaintiff, while it cannot survive even though the first or the second appellate Court might pass a decree and the trial Court has incorrectly dismissed the plaintiff's suit. This would be the result, if the interpretation of the word 'suit' is restricted to the original suit only, and the 'decree', to the decree of the trial Court only. Apparently, it may seem to create anomalous results. This is inevitable according to the reasoning of the Full Benches of the Madras and the Mysore High Courts and the other decisions falling in line with that reasoning.

19. However, I feel that the question of interpretation, cannot be determined with reference to the astounding results that it might have. This is no doubt an apparent anomaly, inasmuch as the right to enforce the attachment before judgment will depend upon any final operative decree passed by the final Court of appeal, but its survival is made dependent not on the final operative decree, but upon the chance of the trial Court rightly or wrongly passing a decree in favour of the plaintiff.

On the other hand, by the interpretation put by the Full Bench of the Travancore-Cochin High Court, the question of survival of the attachment before judgment is made dependent on the final operative decree that may be passed either by the trial Court or by any of the appellate Courts irrespective of the fact that the trial Court may have rightly or wrongly decreed or dismissed the plaintiffs' suit. In my opinion, it would not exactly be appropriate to say that attachment before judgment is revived by the passing of a decree by an appellate Court. The question has been so understood in some decisions. I feel that the question of revival is not so very germane. But according to the view of the Travancore-Cochin Full Bench what is done is to interpret the word 'suit' in Order 38 Rule 9, Civil Procedure Code so as to include an appeal and to interpret the 'decree' in Order 38 Rule 11, Civil Procedure Code so as to include the decree of the appellate Court by relying on the dictum laid down by Their Lordships of the Supreme Court in (S) AIR 1956 SC 655. The view taken by the Full Bench of the Travancore-Cochin High Court has much to commend in this behalf, because the anomalous situations created by the contrary view are certainly avoided by adopting that interpretation.

But, the law as understood by the various High Courts taking the contrary view cannot be said to amount to an interpretation which on the face of it might be called incorrect or wrong. That is a very rational and a plausible interpretation possible, having in view the wording of Rules 9 and 11 of Order 38, Civil Procedure Code. It may further be noted that the word 'subsequent' that qualifies the 'word 'attachment' may mean the decree of the trial Court and need not necessarily mean the decree passed by any appellate Court. The word can also be interpreted to mean a decree which may be passed at any time after the attachment before judgment and by any Court whose decree might be final and operative. As such, the use of the word 'subsequent' in relation to attachment cannot be said to favour either of the views decisively.

20. I do realise that the learned Judges of the Full Bench of the Travancore-Cochin High Court felt a real difficulty and it was for that reason alone that they differed from the almost unanimous view as represented by the Full Bench cases of the Madras and the Mysore High Courts and other cases of other High Courts and observed that it is not the object of interpretation to lead to anomalous results, thereby making the legislation senseless. Examining the two views closely, if we were to put them to the test of meeting different situations, the view propounded by the Travancore-Cochin Full Bench might be more preferable, while the contrary view might lead to anomalous situations. The Travancore-Cochin High Court tried to solve the same by adopting the dictum of the Supreme Court in (S) AIR 1956 SC 655 (supra) by interpreting the word 'suit' so as to include an appeal and by interpreting the word 'decree' so as to include the decree of the appellate Court.

I may observe that there is another way of solving the difficulty. The view of the Full Benches of the Madras and the Mysore High Courts and other similar cases is certainly entitled to due weight on the principle of stare decisis. The view is based on overwhelming and almost unanimous authority right from the early days. The difficulty that the learned Judges of the Travancore-Cochin Full Bench felt can, in my opinion, be easily solved by pointing out that the attachment before judgment which terminates on the dismissal of a suit by the trial Court (whether the trial Court's judgment is right or wrong) can certainly be given a fresh lease of life by resorting to the powers under Section 107 read with Order 38 Rule 5, Civil Procedure Code. Therefore, the practical difficulty is not so rear, although the question of interpretation in favour of either of the views would be a very plausible one.

Therefore, by this method the anomalous results can certainly be avoided by resorting to the powers of the appellate Court under Section 107, Civil Procedure Code. From this point of view I am of opinion that the value to be attached to either of the views being more or less balanced, the view of the Madras and the Mysore Full Benches ought to be upheld on the principle of stare decisis. That is all that I can and wish to say on this aspect.

21. The learned Single Judge elected to adopt the almost unanimous view of the different High Courts and rejected the view of the Full Bench of the Travancore-Cochin High Court for the obvious reason that the former view appealed to him to be the more rational. Under the circumstances, he cannot be said to have acted erroneously in adopting the view on the principle of stare decisis and reversing the view of the Courts below.

22. As a result, I would affirm the order of the learned Single Judge, though for different reasons. Consequently, this appeal fails and is dismissed with Costs. Counsel's fee according to schedule or certificate, whichever be less.

Newaskar, J.

23. I do not share my learned brother Tare,J.'s view that the decision of the Full Bench ofTravancore-Cochin in AIR 1952 Trav-Co 414, ispreferable if put to logical test to the one sharedby the Full Benches of the Madras High Courtin AIR 1928 Mad 940, (sic) (AIR 1930 Mad 514,Balaraju Chettiar v. Masilamani Pillai ?) andMysore High Court in (S) AIR 1955 Mys 91 (FB),and that of Andhra Pradesh High Court in AIR1958 Andh Pra 216. I also ana not in eye to eyewith him as regards his further view that the majority view is to be accepted on the principle ofstare decisis as he chooses to call. In my opinion the Full Bench, of Travancore-Cochin whiletrying to interpret the words 'suit' and 'decree'in Order 38 Rule 9 have introduced considerationswhich are not quite germane to the question involved.

24. Rule 9 is in the midst of Rules from Rules 5 to 13 of Order 38 C. P. C. which deal with the subject of attachment before judgment.

25. Order 38 Rule 5 indicates that the power under Order 38 Rule 5 can be exercised at any stage including an appellate stage and the word 'Court' used therein will have to be construed as the Court before whom the suit or appeal which may be a continuation of suit may be pending when the power is invoked except as to withdrawal of the order for attachment in which case it may mean the Court which dismisses the suit while the attachment before judgment was still subsisting.

26. Where the power is exercised while the case is before the trial Court then on the terms of Order 38 Rule 9 the Court is by law bound to order withdrawal of attachment on the dismissal of the suit in its entirety and even if no formal order to that effect is passed it would come to an end by reason of the dismissal of the suit itself. There is no specific provision for revival and that effect cannot be achieved by any process of interpretation.

If the suit is dismissed by the trial Courtbut an appeal is preferred the suit is at the stageof appeal and since at any stage the power of attachment before judgment can be invoked, itwould be open for the unsuccessful plaintiff-appellant to invoke that power whether it be in firstor second appeal and if such attachment is ordered by such Court the attachment will continueor cease in accordance with the circumstancewhether the suit is decreed wholly or in part orin part or wholly dismissed. If it is wholly dismissed Rule 9 will come into play with referenceto that Court be it the first appellate Court orsecond appellate Court.

27. In my opinion the view taken by the majority of the High Courts is the only logical view on the question under consideration. The learned Single Judge's decision, with respect, is correct on this question.

28. As actual sale of the property has so far not taken place it is premature to express anyopinion about the possibility of any error of law that might hereafter be committed.

29. The appeal is, therefore, without force and is dismissed with costs.


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