Skip to content


Namagiri Ammal Vs. Muthu Velappa Goundan and anr. - Court Judgment

LegalCrystal Citation
SubjectCivilivil
CourtChennai
Decided On
Reported in(1929)56MLJ70
AppellantNamagiri Ammal
RespondentMuthu Velappa Goundan and anr.
Cases ReferredSasirama Kumari v. Meherban Khan
Excerpt:
.....the lower court's decree was reversed in appeal the property could not be proceeded against in execution as if the original attachment was still subsisting. this rule clearly contemplates the making of an order of some sort by the court and prima facie rule 9 also requires some such order. the question of whether when a suit is dismissed in the lower court and the dismissal is set aside in appeal the attachment must be deemed to have continued throughout is an aspect of the question which need not be decided now, but prima facie the result of the failure of the court to pass an order withdrawing the attachment would appear to be that the attachment continues in force......6,400 bearing interest at rs. 10 per rs. 100 per annum. the defendant admits having executed a pro-note to krishna aiyangar on 10th august 1919 for rs. 5,892 bearing interest at 8 per cent, per annum. in ex. f, the attachment order served on the 1st defendant on 23rd january, 1920, the pro-note is described as one executed to krishna aiyangar for rs. 6,000. there, is nothing on record to show that the 1st defendant objected to the attachment of the pro-note for rs. 6,000 when he was served with the notice ex. f; nor did he mention in the counter-statement ex. c filed by him, when opposing the appointment of receiver, that the pro-note in respect to which he was restrained was not in existence and therefore the order was of no avail. on the other hand, he contended that the suit on the.....
Judgment:

Devadoss, J.

1. The plaintiff as Receiver brought this suit for recovery of the amount due on a promissory note executed by the 1st defendant on 10th August, 1919 in favour of one Krishna Aiyangar. It was contended by the 1st defendant, among other things, that there was no such pro-note as that mentioned in the plaint, that the pro-note executed by him in favour of Krishna Aiyangar had been partially discharged and that the plaintiff is not entitled to bring a suit on the pro-note as it had not been attached by a Court. The Subordinate Judge dismissed the suit upholding the contention of the 1st defendant. Plaintiff has preferred this appeal.

2. The plaintiff brought O.S. No. 152 of 1922 in the District Munsif's Court of Gopichettipalayam against her father, Krishna Aiyangar, for possession of lands and mesne profits and applied for attachment before judgment of the pro-note executed by the 1st defendant to Krishna Aiyangar for Rs. 6,000 and the Court ordered attachment on 21st January, 1920 and notice of it was served on the 1st defendant on 23rd January, 1920. The plaintiff thereupon applied for the appointment of a Receiver for the. collection of the amount due on the pro-note and she was appointed interim Receiver on 15th August, 1922. The 1st defendant filed a counter-statement and objected to the appointment of a Receiver. The District Munsif, notwithstanding the objection of the 1st defendant, appointed plaintiff Receiver and she has brought this suit in her capacity as Receiver for the amount due on the pro-note. She has made her stepmother, the widow of Krishna Aiyangar, 2nd defendant. The contention of the 1st defendant is that the pro-note sued on is not the one executed by him in favour of Krishna Aiyangar and the suit must, therefore, fail. In paragraph 3 of the plaint the pro-note is described as having been executed to the plaintiff's father, Krishna Aiyangar, by the 1st defendant on 10th August, 1919 for Rs. 6,400 bearing interest at Rs. 10 per Rs. 100 per annum. The defendant admits having executed a pro-note to Krishna Aiyangar on 10th August 1919 for Rs. 5,892 bearing interest at 8 per cent, per annum. In Ex. F, the attachment order served on the 1st defendant on 23rd January, 1920, the pro-note is described as one executed to Krishna Aiyangar for Rs. 6,000. There, is nothing on record to show that the 1st defendant objected to the attachment of the pro-note for Rs. 6,000 when he was served with the notice Ex. F; nor did he mention in the counter-statement Ex. C filed by him, when opposing the appointment of Receiver, that the pro-note in respect to which he was restrained was not in existence and therefore the order was of no avail. On the other hand, he contended that the suit on the pro-note would be beyond the jurisdiction of the Munsif's Court and, therefore, it could not appoint a Receiver in respect of the pro-note. When the plaint contains sufficient particulars as to the identity of the pro-note sued on. the suit should not fail by reason of an error or a mistake in its description which does not mislead the defendant as to the nature and the particulars of the claim. Here the names of the promisor and the promisee and the date of the pro-note are correctly given and the amount mentioned is Rs. 6,000, whereas the actual amount of the pro-note is Rs. 5,892. The plaintiff was not in possession of the note at the time when she filed the suit. It cannot be said in the circumstances that the 1st defendant was taken by surprise or that he was not aware of what the plaintiff was suing on. When a plaint contains sufficient averments and indicates with reasonable precision what the claim sued on is, the suit should not fail by reason of the omission or incorrect description of any particular. It is unnecessary to consider in detail the case-law on the point. In Viswanadha Pandora Sannadhi v. The South Indian Bank, Tinnevelly (1917) 6 L.W. 712 the learned Judges observed:

What the Courts have to find out in such cases is whether the claim agrees substantially with the subject-matter of the purchase. As reasonable amount of certainty is all that can be expected having regard to the knowledge and the circumstances of the plaintiff, the principle enunciated by Lindley, M.R., in Cowen and Trucfitt, Ltd. (1899) 2 Ch. 309 applies to this case.

3. In that case Lindley, Master of the Rolls, observed with regard to the maxim Falsa demonstratio nan nocet:

I do not know that the principle can be better put than it is in Jarman on Wills, 5th Edition, page 742, where it is said the rule means 'that where the description is made up of more than one part, and one part is true, but the other false, there, if the part which is true describe the subject with sufficient legal certainty, the untrue part will be rejected and will not vitiate the devise.'

4. Mr. T. M. Krishnaswami Aiyar who appears for the 1st defendant fairly conceded that he could not contend that the pro-note sued on was not the pro-note attached. I have no hesitation in holding that the pro-note sued on is the one executed by the 1st defendant to Krishna Aiyangar on 10th August, 1919 for Rs. 5,892.

5. The next question is, was it under attachment at the time when the Receiver was appointed? Under Order 21, Rule 51, Civil Procedure Code, the attachment of a negotiable instrument when not in Court or in the custody of a public officer should be made by actual seizure. In order to make the attachment effectual actual seizure is necessary, for, if it is not seized the promised may negotiate it and the attachment by mere notice will not avail against a holder in due course who gets it without the knowledge of the attachment from the promisee--vide Subramania Aiyar v. Chokalinga Mudaliar I.L.R. (1922) Mad. 415 : 44 M.L.J. 206. But the notice of attachment to the debtor or promisor is sufficient protection against his paying the amount due on the instrument to the promisee or any one else claiming under him. The notice served on the 1st defendant on 23rd January, 1920 stated that he was by injunction ordered not to pay money towards the promissory note which he had executed to Krishna Aiyangar for Rs. 6,000. So far as the 1st defendant is concerned this was effective attachment.

6. It is strongly urged that granting that this is effective attachment as the suit was dismissed for default, the attachment ceased to have effect and as there was no fresh attachment of the pro-note on the restoration of the suit, there was no attachment subsisting at the time of the appointment of the Receiver. The case was taken up for trial on 21st July, 1921. Plaintiff and her pleader were absent and the suit was dismissed for default of plaintiff's appearance. She applied for restoration of the suit on 25th July, 1921 and the District Munsif restored the suit to file. The question is, does the dismissal of the suit necessarily entail the withdrawal of the attachment before judgment without a specific order of the Court for the purpose? I have no hesitation in answering the question in the negative. Order 38, Rule 9, Civil Procedure Code says : '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 rule makes it obligatory on the Court to pass an order withdrawing the attachment when security is furnished or when the suit is dismissed. When the words of a statute are clear it is not proper to ignore their plain meaning and give them a different meaning. As soon as a suit is (dismissed the person against whom an order for attachment was made has simply to apply to the Court for withdrawing the order. The application may be oral or in writing and the Court, when such an application is made, is bound to grant it unless there are circumstances which would justify postponing the granting of the prayer or refusing it. When a party does not choose to avail himself of a remedy which the law gives him Courts are not justified in giving him the remedy which owing to his carelessness or negligence he does not choose to ask. If a garnishee pays the amount due from him into Court, can he withdraw the amount without an order of Court by reason of 'the dismissal of the suit? If moveable properties or negotiable instruments attached are in the custody of the Court the dismissal of the suit in which the attachment was made would not place the person from whom the moveables or negotiable instruments were taken in possession of them. Such a person will have to apply to the Court for getting them back. I do not see why a different rule should be held to apply when property attached, whether moveable or immoveable, is not in the actual custody of the Court. In my view the dismissal of a suit does not amount to the withdrawal of the attachment before judgment and, if the order of dismissal is set aside on appeal and a decree is passed in favour of the plaintiff, the attachment before judgment would enure for his benefit. Here, in this case, the suit was dismissed for default of plaintiff's appearance and was restored by the Court. The restoration of a suit under Order 9, Rule 9, Civil Procedure Code stands on a slightly different footing from the order of the Appellate Court reversing the dismissal of the suit. A Court : may dismiss a suit for default and may restore it to file on proper cause being shown in the course of the same day. it would work great hardship if it be held that in such a case the attachment before judgment ceased to have force because the suit was off the file for a few hours. I think the legislature has advisedly framed Order 38, Rule 9, Civil Procedure Code and I do not see sufficient ground for ignoring the plain terms of Order 38, Rule 9 or to give the plain words of the rule a meaning which they are not capable of bearing. The argument founded on the analogy of Order 21, Rule 57, Civil Procedure Code has no application. In that rule it is specifically stated that upon the dismissal of the application the attachment shall cease. No doubt the Allahabad High Court and the Calcutta High Court have taken a different view. In Ram Chand v. Pitam Mal I.L.R. (1888) All. 506 Mahmood, J., was of opinion that 'an attachment before judgment under Section 488 like a temporary injunction under Section 492 becomes functus officio as soon as the suit terminates' and he goes on to* add that if he were to give the literal interpretation to Section 488 of the old Code corresponding to Order 38, Rule 9 of the present Code he should be driven to the logical conclusion that such interim order of attachment subsisted for ever whether there was or was not an appeal unless and until such an order was expressly withdrawn. With great respect I am unable to see any absurdity in holding that an attachment before judgment subsists, till it is withdrawn, when the terms of the section are clear. This case was followed in Sasirama Kitmari v. Meherban Khan (1911) CRI.L.J. 243. There are no cases of our High Court dealing with this question although Wallace, J., is of the same view as the one I have expressed and Ramesam, J., is prepared to agree with the decisions in Ram Chand v. Pitam Mal I.L.R. (1888) All. 506 and Abdul Rahman v. Amin Sharif I.L.R. (1918) C. 780. I hold that an attachment before judgment continues to have effect till it is withdrawn by an order of Court and in this case the attachment continued in force even though the suit was dismissed for default and restored afterwards.

7. Apart from the question of attachment there is the further-fact that the plaintiff has been appointed Receiver in respect of the suit pro-note and as such she is entitled to collect the amount due on it. Under Order 40, Rule 1, Civil Procedure Code the Court has power to appoint a Receiver of any property 'whether before or after decree.' The Court appointed the plaintiff interim Receiver on 15th August, 1922 and the order absolute is 'petitioner was appointed Receiver so that the pro-note for Rs. 6,000 and odd is not barred by limitation.' The 1st defendant when he objected to the appointment did not say that there was no such pro-note as that mentioned in the application for the appointment of Receiver. He stated in his counter-statement, Ex. C, that he was not aware of the attachment of a portion of the pro-note for Rs. 6,000 and further stated that no right accrued to the petitioner with regard to the suit pro-note and that a suit on the pro-note would be beyond the jurisdiction of the Munsif's Court. After hearing the 1st defendant the Court appointed the plaintiff Receiver in respect of the pro-note and she is therefore entitled to sue on it.

8. The next contention of the 1st defendant is that the pro-note was partially discharged. This depends on the evidence in the case.

[The learned Judge then discusses the evidence and concludes]

9. I have no hesitation in holding that the partial discharge pleaded is not true. The plaintiff, therefore, will have a decree for Rs. 5,892 with interest at 8 per cent. from 10th August 1919 to date of decree and thereafter at 6 per cent. with proportionate costs here and in the Court below. The 2nd respondent's vakil asked that the order as to costs in his client's favour should not be varied as she was not a necessary party to the suit. The plaintiff had to make the 2nd defendant, the legal representative of Krishna Aiyangar, a party to the suit, as plaintiff was not in possession of the suit pro-note. The order of the Subordinate Judge directing the plaintiff to pay her costs cannot stand. That order will be vacated. The plaintiff's costs will be borne by the 1st defendant and the 2nd defendant will bear her costs throughout.

Phillips, J.

10. I agree, but as the meaning of Order 38, Rule 9. Civil Procedure Code does not appear to have been formed the subject of judicial decision in this Court, I think it desirable to express my own views on the subject. The question is whether the provision in Order 38, Rule 9, that, where an order has been made for attachment before judgment, the Court shall order the attachment to be withdrawn when the suit is dismissed, is mandatory or merely directory. There is no direct authority in this Court on the point, but it was held in Allahabad (Ram Chand v. Pitam Mal I.L.R. (1888) All. 506) that the provision in the rule was merely directory and that when the Court failed to pass an order withdrawing the attachment, nevertheless the attachment fell to the ground on the dismissal of the suit, so that when the Lower Court's decree was reversed in appeal the property could not be proceeded against in execution as if the original attachment was still subsisting. This view was followed by a Bench of the Calcutta High Court in Abdul Rahman v. Amin Sharif I.L.R. (1918) C. 780 where it was held that on dismissal of the suit the attachment before judgment fell to the ground, whether an appeal is filed or not. These two cases were considered in Meyyappa Chettiar v. Chidambaram Chettiar (I.L.R. 1923) M. 483 : 46 M.L.J. 415, but the actual point did not then arise for consideration. Ramesam, J., agreed with the cases above quoted but Wallace, J., was of a contrary opinion. The case reported in Sasirama Kumari v. Meherban Khan (1911) Cri.L.J. 243 is not to the point, for in that case an order withdrawing the attachment had been passed and it was held that the appellate decree did not revive, the attachment. The matter is therefore res integra so far as this Court is concerned and it is necessary to consider the language of the Code in this respect.

11. Order 38, Rule 9, Civil Procedure Code requires the Court to withdraw the attachment on dismissal of a suit, the words used being 'shall order the attachment to be withdrawn,' Similarly in Rule 6 of the same order when property has been attached under Rule 5 and the defendant furnishes security it is directed that the Court shall order the attachment to be withdrawn or make such other order as it thinks fit. This rule clearly contemplates the making of an order of some sort by the Court and prima facie Rule 9 also requires some such order. When an attachment is made in execution, Order 21, Rule 57 provides for its cessation, and that rule says : 'Upon the dismissal of such application (vis., for execution) the attachment shall cease.'

12. The language in this section is very different from that in Order 38, Rule 9, but if the Allahabad and Calcutta decisions are correct the effect of the two sections is exactly the same although the language is so very different. Undoubtedly the Court should of its own accord direct the attachment to be withdrawn as soon as it dismisses the suit, and if such an order is not passed, it is open to the parties to apply for the making of such an order, but there are cases where the Court might not consider it necessary to pass such an order at once. For instance, a suit might be dismissed for default and restored again for reasons shown on one and the same day. In such a case there would be no real necessity for an order withdrawing the attachment. The facts of this case are somewhat akin, for the suit was dismissed at a preliminary stage and was subsequently restored though after a considerable interval. Under Order 9, Rule 9 when an application is made to set aside the dismissal of a suit for non-appearance of the plaintiff the Court shall make an order setting aside the dismissal. That order of dismissal having been set aside the suit remains as it was on the day that it was dismissed, and all proceedings taken up to that date must be deemed to be in force when the dismissal is set aside, and in my opinion all interlocutory orders would be revived on the setting aside of the dismissal. Similarly, an order for attachment of property would also be revived. It would certainly be unreasonable to expect a plaintiff who had already obtained an order for attachment before judgment to comply with the whole procedure laid down in Order 38 and to have a fresh attachment made. If an order withdrawing attachment had been made on the dismissal of the suit, then it might be argued that a further order for attachment must be made, because the order withdrawing the attachment and the order of dismissal may be deemed to be simultaneous, and therefore the setting aside of the order of dismissal would not necessarily set aside the order withdrawing the attachment, but that point does not arise for consideration now. When no order has been passed withdrawing the attachment and the dismissal of the suit is subsequently set aside by the Trial Court the attachment must be deemed to subsist as the setting aside of the dismissal order must revive all orders in force till the dismissal. The question of whether when a suit is dismissed in the Lower Court and the dismissal is set aside in appeal the attachment must be deemed to have continued throughout is an aspect of the question which need not be decided now, but prima facie the result of the failure of the Court to pass an order withdrawing the attachment would appear to be that the attachment continues in force.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //