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Varadarajulu Naidu Vs. Inthirani Ammal and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Reported in(1968)1MLJ386.
AppellantVaradarajulu Naidu
Respondentinthirani Ammal and anr.
Cases ReferredSee The Dharapuram Janopakara Nidhi Ltd. v. Lakshminarayana Chettiar
Excerpt:
- .....an attachment before judgment followed by a redundant re-attachment after judgment is merely that the property is under attachment. in such cases, it is meaningless to say that the property is under two attachments. it is still more meaningless to say that one attachment is dropped but another subsists. all the earlier attachments, in all such cases, merge into the last.3. where the earlier attachment merges in the ' last', a second claim petition is competent; see the dharapuram janopakara nidhi ltd. v. lakshminarayana chettiar : air1937mad44 which has been followed by me in s.a. no. 316 of 1963.4. the petition is dismissed with costs.
Judgment:

K. Veeraswami, J.

1. This is a petition to revise an order of the District Munsif of Kallakurichi allowing a claim petition filed by the two respondents. There was an attachment before judgment on 28th March, 1963. The respondents preferred a claim which was dismissed on 16th August, 1963. The petitioner decree-holder applied on 18th July, 1964, for re-attachment after getting the decree transferred to the Court below for the purpose of execution. That petition was dismissed on 26th September, 1964, for default of the decree-holder. He took out another execution petition for re-attachment and sale. It was at that stage the respondents again made a claim which has been allowed.

2. It is urged for the petitioner that the second claim petition by the respondents was not maintainable. This is on the ground that the attachment before judgment should be taken to continue right through. I think that this means that the attachment before judgment and the re-attachment could co-exist, which can never be. The effect of re-attachment is that the attachment before judgment, assuming that it continued when the earlier petition was dismissed, merged in it. The result of it is the respondent would have another opportunity to file a claim. This view seems to receive support from the observation of Ramesam, J., in Meyyappa Chettiar v. Chidambaram Chettiar : AIR1924Mad494 . The learned Judge said:

Just as the effect of the two attachments of the same property in execution of the same decree is merely that the property is under attachment, the first attachment merging in the second, similarly the effect of an attachment before judgment followed by a redundant re-attachment after judgment is merely that the property is under attachment. In such cases, it is meaningless to say that the property is under two attachments. It is still more meaningless to say that one attachment is dropped but another subsists. All the earlier attachments, in all such cases, merge into the last.

3. Where the earlier attachment merges in the ' last', a second claim petition is competent; See The Dharapuram Janopakara Nidhi Ltd. v. Lakshminarayana Chettiar : AIR1937Mad44 which has been followed by me in S.A. No. 316 of 1963.

4. The petition is dismissed with costs.


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