K.B.N. Singh, C.J.
1. This appeal is against the order dated 28.04.1982 made in C.M.P. No. 3561 of 1982 in A.S.No. 794 of 1981 on the file of this court. By the said order a learned single Judge of this Court (Ratnam J) refused to modify his earlier order of attachment dated 07.01.1982 in C.M.P.No.13484 of 1981 in the said appeal. The respondent herein filed the suit in O.S.No. 87 of 1979 on the file of the court of the sub-ordinate Judge of Devakotai against the appellant herein based on a promissory note dated 27.11.1976 for a sum of Rupees 13,000. The total claim made in the suit was Rs. 36,128.65. the defendant who is the appellant herein contested the suit and urged that out of the sum of Rs.13,000 he actually received only security, he also deposited with the plaintiff 42-1/2 sovereigns of gold chain. the trial court came to the conclusion that the plaintiff actually advanced only Rs.11,700 to the defendant and passed a decree only for a sum of Rs. 16,122. the trial court also gave a finding that defendant appellant herein had deposited with the plaintiff respondent herein 31-1/2 sovereigns of gold chain as collateral security which has not been returned. It is now submitted at the Bar herein deposited the entire decretal amount. Being aggrieved that the entire suit claim was not decreed the respondent herein filed an appeal before this court. In the appeal he has also challenged the findings of the trial court that 42-1/2 sovereigns of gold chain is with him.
2. In the appeal, A.S.No.794 of 1981, the plaintiff-appellant (respondent herein) filed a petiton for attachment of the defendant's properties during the pendency of the appeal. The petition was contested by the appellant herein. the learned single Judge by his order dated 07.01.1982 made the interim order of attachment absolute. The appellant herein filed C.M.P. 3561 of 1982 for modifying the earlier order and this petition was also dismissed on 28.04.1982, and it is as against this order, the present appeal has been filed by the defendant in the suit. It may be mentioned here that in the affidavit filed in support of the petition in C.M.P. 3561 of 1982, the appeallant herein had even offered security for vacating the order of attachment dated 07.01.1982.
3. Mr.R.Gandhi, learned counsel for the appellant, submitted that the respondent having lost in the suit with regard to the balance of the claim could not maintain his petition for attachment of the appellant's property at the appellate stage. He further submitted that on the finding of the trial court that 42-1/2 sovereigns of gold chain had been deposited with the respondent herein as collateral security, no order of attachment could be passed even if it was open to the court to pass such an order. Thirdly, he submitted that the decree was satisfied by the defendant by depositing a sum of Rs.16,122 into the trial court and there was nothing left for which the respondent could demand any security from the appellant on the basis of the decree. Mr.A.R.Lakshmanan appearing on behalf of the respondent submitted that as per the allegations in paragraphs 11 and 12 of the affidavit filed by him, the appellant herein was likely to dispose of the property and the respondent would be without any remedy in case his appeal is allowed. He therefore submitted that the order of attachment should be sustained.
4. Having heard the learned counsel for the parties, we are not satisfied that there is any justification in an appeal for attaching the property of the defendant appellant here in the respect of the disallowed portion of the claim made in the suit. The position in a suit is rather different where the issues have to be tried by the court. In a suit it is open to the plaintiff under O. 38, C.P.C. to made out for attachment before judgment so that the plaintiff after his success in the suit may not be without ordinarily applied as the appellate stage when the trial court has goes to the issues and found that a part of the plaintiff's claim has not been established. In such a situation, attachment should not be ordered as a matter of course. On the finding of the trial court that the respondent is having 42-1/2 soverigns of gold chain as collateral security which in the ordinary course would be sufficient security even if any security was needed, no order of attachment could be made. We are, therefore satisfied that on the facts and circumstances of the case, no order of attachment could have been made attaching the property of the appellant herein during the pendency of the appeal. the appeal is accordingly allowed and the order of attachment is vacated. There will be no order as to costs in this appeal