Ramaprasada Rao, Ag. C.J.
1. These appeals are directed against the order of the City Civil Judge, Madras, who, in an under chapter suit, failed to notice the prior order passed by him, attaching the moneys of the judgment-debtor in the hands of garnishees, by way of attachment before judgment. The plaintiff is the appellant. He filed an under chapter suit on the foot that the defendant owed him moneys for goods sold and delivered. He also rested his case on two dishonoured cheques issued by the defendant. Having regard to the conduct of the defendant, the plaintiff, finding that the defendant was an out of State dealer, sought for attachment before judgment of certain moneys belonging to the defendant in the hands of garnishees. The application for attachment before judgment was ordered.
2. The defendant attempted to obtain leave to defend, but later on gave up the same and submitted to a decree. The learned trial Judge passed a decree, who, at the request of the defendant, gave him the indulgence of paying the decree amount in instalment. But, curiously enough, at the time of passing the decree, he dismissed the application for attachment before judgment, without even any objection or request by the defendant against the said attachment or for raising it for proper reasons. It is as against this direction resulting in the summary raising of the attachment of the moneys belonging to the defendant in the hands of garnishees the present appeals have been filed.
3. The contention of learned counsel for the appellant is that, when the defendant submitted to a decree, more or less by consent, there was no occasion for the learned Judge to summarily dismiss the application for attachment before judgment on the only ground that a decree had been passed enabling the defendant to pay the amount thereunder in instalments. Learned counsel for the respondent (defendant) would, however, say that eo instanti the decree is allowed to be satisfied by paying moneys in monthly instalments or at stated intervals, then the order for attachment of any of the properties of the defendant could not thereafter survive and that therefore the order of the learned Judge dismissing the application for attachment before judgment in the above circumstances was right.
4. When an order for attachment before judgment under O. 38, C.P.C. is passed, it is generally done after examining the materials, though prima facie, placed by the plaintiff that the time of bringing up the action before the court for the first time. Generally, and indeed it ought to be the normal position, such orders for attachment before judgment should only be issued, if the conscience of the court is satisfied that the plaintiff is likely to be prejudiced by the non-grant of the same and that the attitude of the defendant prior to the filing of the suit was such that it raised a reasonable presumption that, but for the grant of the order of attachment, justice would not be done. If, therefore, it could be presumed that such an order of attachment before judgment in the instant case was also granted under such accepted circumstances, then it is an independent order, which has to survive unless set aside in a manner known to law. The fact that the defendant suffers a decree and prays for satisfaction of the same by paying moneys at stated intervals or in monthly instalment, would not alter the situation or wipe out as a matter of course the legal effect of the prior order of attachment before judgment of the properties of the judgment-debtor which was issued by a competent court in a situation which compelled the court to do so. An order made under O. 38, C.P.C. is independent and is not capable of being telescoped to an order permitting the defendant to pay the decree amount in monthly instalments or at stated intervals, which might be passed by the trial court on a written or oral application made by the judgment-debtor at about the time when the defendant suffers a decree by consent. If, therefore, the two orders are not interdependable, but are independent, then we are unable to appreciate the contention of learned counsel for the respondent that by reason of the passing of the decree permitting the judgment-debtor to pay it in instalments, an independent order passed by a competent court under O. 38, C.P.C. works itself out and becomes ineffective thereafter. This was not borne in mind by the learned trial Judge, when he dismissed the application for attachment before judgment without applying his mind either to the facts of the case or to the fundamentals which are invocable in such circumstances. The order of the lower court in therefore set aside to this extent, namely, that the order granted by the court below in I. A. Nos. 12657 and 13214 of 1976 in O. S. 4229 of 1976 shall stand, subject, however, to the following observations-
Having regard to the fact that the judgment-debtor appears to have been regular in the payment of the instalments, we modify the order of attachment before judgment, by directing the plaintiff-appellant to take the benefit out of it to the extent of 50 per cent. of the amount attached, and as regards the balance of the decree amount, after adjusting the instalments already paid, the judgment-debtor shall furnish security within four weeks from this date, and on such furnishing of security the attachment over the other half of the moneys of the judgment-debtor attached pursuant to the order of attachment before judgment as above, shall stand raised. There will be no order as to costs.
5. Order accordingly.