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Alwar Chetty Vs. Poovala Vardappa Naicker and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in16Ind.Cas.387
AppellantAlwar Chetty
RespondentPoovala Vardappa Naicker and ors.
Cases ReferredPuddomonee Dossee v. Roy Muttooranath Chowdhury
Excerpt:
civil procedure code (act xiv of 1882), section 490 - attachment before judgment--subsistence of attachment after decree--proof of intention to abandon attachment--re-attachment after decree superfluous. - .....the plaintiff did cause the property to be re-attached after the decree as indicating that the original attachment had been abandoned by the plaintiff and he relies on the dictum of the privy council in puddomonee dossee v. roy muttooranath chowdhury 12 b.l.r. 411.3. we, however, do not think that, in the circumstances of this case, any intention to abandon the attachment can be inferred.4. the evidence shows that the plaintiff acted with diligence in attaching the property before judgment and he continued to act with diligence after the decree was given in his favour and took proceedings repeatedly in various courts right up to 1905, to secure the fruits of his decree. in these circumstances, it is unlikely that he would have abandoned the attachment. the reattachment after decree.....
Judgment:

1. The question in this second appeal is whether the Subordinate Judge was right in holding that the attachment of the mortgagee's interest made before judgment by the plaintiff in Original Suit No. 507 of 1898 was a subsisting attachment when the mortgagee transfered his interest to Kumarasavami under Exhibit IV in February 1905.

2. We are of opinion that the Subordinate Judge was right. Section 490 of the Code of Civil Procedure then in force shows that the mere passing of the decree in Original Suit No. 507 did not put an end to the attachment before judgment. There was no express abandonment or cancellation of the attachment at any time. The appellant, however, points to the long interval between 1898 and 1905 and to the fact that the plaintiff did cause the property to be re-attached after the decree as indicating that the original attachment had been abandoned by the plaintiff and he relies on the dictum of the Privy Council in Puddomonee Dossee v. Roy Muttooranath Chowdhury 12 B.L.R. 411.

3. We, however, do not think that, in the circumstances of this case, any intention to abandon the attachment can be inferred.

4. The evidence shows that the plaintiff acted with diligence in attaching the property before judgment and he continued to act with diligence after the decree was given in his favour and took proceedings repeatedly in various Courts right up to 1905, to secure the fruits of his decree. In these circumstances, it is unlikely that he would have abandoned the attachment. The reattachment after decree was, as the Subordinate Judge says, superfluous, and was probably made, as the plaintiff says in his evidence, because the Court ordered him to make it. The reasons why such an order was issued do not appear, but it was probably due to a misunderstanding as to whether the attachment before judgment continued to subsist after judgment.

5. We agree with the Subordinate Judge that no re-attachment was necessary. We, therefore, dismiss this second appeal with costs.


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