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Srinivasa Sastrial Vs. Sami Rau - Court Judgment

LegalCrystal Citation
SubjectCivil;Property
CourtChennai
Decided On
Judge
Reported in(1894)ILR17Mad180
AppellantSrinivasa Sastrial
RespondentSami Rau
Cases ReferredPuddomonee Dossee v. Roy Muthooranath Chowdhry
Excerpt:
declaratory decree - code of civil procedure--act xiv of 1882, sections 278 and 288--termination of attachment by abandonment. - .....of the court without notice to either party and in no case could defendant have been made a party to the appeal if there had been one.3. the decision quoted in puddomonee dossee v. roy muthooranath chowdhry 12 b.l.r. 411 lays down no general rule, but the effect of it is that it is a matter of inference in the particular case whether the striking off of an execution petition terminates an attachment. we agree with the district judge that in this case there was no intention to abandon or to terminate the attachment. this may he inferred not only from plaintiff's subsequent conduct, but from the very terms of the sale-deed under which the defendant purchased, provision being therein made that defendant should pay off the balance of the decree debt in the suit in which the attachment.....
Judgment:

1. We have no doubt that a suit for a declaratory decree is maintainable. The plaintiff's petition was put in under Section 278 of the Code of Civil Procedure and a suit under Section 2831 is his only possible remedy.

2. The next point urged is that an appeal should have been preferred against the order of the District Munsif directing a second attachment. But that order was a mere direction of the Court without notice to either party and in no case could defendant have been made a party to the appeal if there had been one.

3. The decision quoted in Puddomonee Dossee v. Roy Muthooranath Chowdhry 12 B.L.R. 411 lays down no general rule, but the effect of it is that it is a matter of inference in the particular case whether the striking off of an execution petition terminates an attachment. We agree with the District Judge that in this case there was no intention to abandon or to terminate the attachment. This may he inferred not only from plaintiff's subsequent conduct, but from the very terms of the sale-deed under which the defendant purchased, provision being therein made that defendant should pay off the balance of the decree debt in the suit in which the attachment had been made. No mention in terms is made of the attachment, but it is a legitimate inference that it was then regarded as subsisting.

4. We dismiss the second appeal with costs.

1.

Section 283: The party against whom an order under sections

Saving of suits to es- 280, 281 or 282 is passed may institute a suit to estabhlish the

tablish right to attached right which he claims to the property in dispute, but subject

property. tot the result of such suit, if any, the order shall be conclusive.


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