Rajamannar, C.J.- This Civil Revision Petition originally came up for hearing before Ramachandra Iyer, J., who considered that the case may be posted before a Division Bench in view of the conflict between the decisions in Rama Mudali v. Marappa Goundan1and Palanisami Goundar v. Kaliappa Goundar2 . This petition arises out of an application under section 95 of the Code of Civil Procedure for the award of compensation for attachment on insufficient grounds. It is sufficient to state the following facts. The petitioner before us filed a suit, O.S. No. 385 of 1954, in the Court of the District Munsif of Vellore against the respondent to recover a sum of Rs. 1,260-2-0. Along with the suit he also filed I.A. No. 1245 of 1954, for attachment before judgment of the respondent’s residential house at Gudiyatham on 16th December, 1954. An interim order of attachment was passed and the property was actually attached on 17th December, 1954. On 12th January, 1955, time till 19th January, 1955, was given to the respondent to file a counter-affidavit. The counter-affidavit appears to have been filed and the matter was posted for enquiry to 27th January. Eventually, on 4th March, 1955, the suit itself was decreed ex parte and the attachment was made absolute. Subsequently, the respondent appears to have got the ex parte decree set aside, but evidently no application was made to have the attachment set aside. The respondent thereafter filed the application, out of which this revision petition arises, I.A. No. 205 of 1955, under section 95 of the Code of Civil Procedure, allegeing that the attachment was procured maliciously on untrue allegations. The respondent stated that he was possessed of vast properties and extensive lands and he was also carrying on a lucrative business. The attachment was therefore obtained on false and insufficient grounds with a view to injure his reputation. The respondent claimed damages in a sum of Rs. 1,000. The learned District Munsif held that the attachment was effected mala fide and on insufficient grounds. He overruled an objection that the application was not maintainable, because there was no order setting aside the attachment. He considered a sum of Rs. 300 would be adequate compensation and accordingly directed the petitioner to pay the said amount. There was an appeal by the petitioner before us to the Subordinate Judge of Vellore but the appeal was dismissed. He overruled an objection that the application was not maintainable, because there was no order setting aside the attachment. He considered a sum of Rs. 300 would be adequate compensation and accordingly directed the petitioner to pay the said amount. There was an appeal by the petitioner before us to the Subordinate Judge of Vellore but the appeal was dismissed. The learned Subordinate Judge agreed with the District Munsif on all points. He found that the attachment was secured on false and insufficient grounds. He also held that the petition was maintainable though the order of attachment had been made absolute and there was no order setting aside the attachment. The petitioner seeks from this Court a revision of the said order of the Subordinate Judge confirming the order of the District Munsif. Obviously, this Court cannot go behind the findings of the Courts below that the attachment was procured on false and insufficient grounds and that the sum of Rs. 300 would be adequate compensation. The argument was therefore confined to the question whether the respondent could be granted any compensation so long as there was an order of attachment which had been made absolute and there was no order setting aside the said attachment. Before we deal with the decisions cited to us, we would point out that there are two aspects from which the question can be approached. One is that an application under section 95 of the Code of Civil Procedure is not maintainable once an attachment has been made absolute after notice and there has been no subsequent order cancelling such attachment. This is the aspect emphasised in the decisions cited to us. The other as- pect is not that the application itself is not maintainable but that the prior order of attachment which had been allowed to become final would preclude the Court from holding that the attachment had been procured on false and insufficient grounds. The reasoning is as follows: If the application for attachment had been made on false or insufficient grounds, then it would be open to the defendant on notice to come up and convince the Court that there was no valid reasons for ordering an attachment. The reasoning is as follows: If the application for attachment had been made on false or insufficient grounds, then it would be open to the defendant on notice to come up and convince the Court that there was no valid reasons for ordering an attachment. But if in spite of opposition by the defendant the Court were to hold that there are good grounds for ordering attachment and make the attachment absolute, how can it be held on a subsequent application (under section 95, Civil Procedure Code) that the attachment was obtained on false or insufficient grounds? The prior order of attachment which had become final would be circumvented. Bearing these two aspects in mind we shall deal with the decisions cited to us. Before doing so we shall set out the material portion of section 95, Civil Procedure €6de. “95 (1).- Where, in any suit in which an arrest or attachment has been effected or a temporary injunction granted under the last preceding section,- (a) it appears to the Court that such arrest, attachment or injunction was applied for on insufficient grounds .......the defendant may apply to the Court, and the Court may, upon such application, award against the plaintiff by its order such amount, not exceeding one thousand rupees, as it deems a reasonable compensation to the defendant for the expense or injury caused to him.” In Palaniandi Moopan v. Pachi Palaniandi Moopan1, Cornish, J., held the passing of an order absolute for attachment before judgment is no bar to the entertainment of an application under section 95, Civil Procedure Code, for compensation for obtaining such order on insufficient grounds. The facts in this case were these. The plaintiff applied for and obtained an interim order of attachment before judgment under Order 38, rule 5. The defendant by his counter-affidavit denied the plaintiff’s allegations, but the order of attachment was made absolute on 5th November, 1925. In the counter-affidavit filed on behalf of the defendant, he reserved his right to apply for compensation under section 95 and eventually the application under section 95 was filed. The suit was decreed in favour of the plaintiff on 22nd October, 1926. The District Munsif awarded compensation to the defendant on the ground that the allegation made by the plaintiff was false. The order of the District Munsif was confirmed on appeal by the Subordinate Judge. The suit was decreed in favour of the plaintiff on 22nd October, 1926. The District Munsif awarded compensation to the defendant on the ground that the allegation made by the plaintiff was false. The order of the District Munsif was confirmed on appeal by the Subordinate Judge. It was contended for the petitioner that in view of the order absolute, the Court had no jurisdiction to entertain the petition for compensation under section 95. The argument is thus stated: “ The argument would seem to go the. length of proposing that when once the Court is satisfied that an attachment should be made absolute, and that order is not appealed against, the question whether the attachment was applied for on insufficient grounds cannot be reopened by the party aggrieved by the order.” A judgment of Ramesam, J., in an earlier case, Venkatappayya v. Venkatapayya2, was relied upon but the learned Judge Cornish, J., thought that the case before him differed from that before Ramesam, J. The conclusion of the learned Judge was that the right under section 95 to give compensation is independent of the passing of a prior absolute order of attachment. Beasley, C.J., took a different view in Rama Mudali v. Marappa Goundan3. In that case the suit was one on a promissory note and the plaintiff obtained an interim order of attachment of the defedant’s cattle. Later on, before the suit had been decided and without having obtained any order setting aside the order attaching the property, the defendant put in an application for compensation on the ground that his cattle had been wrongfully attached. The learned Chief Justice held on the authority of Lees v. Patterson4, and other cases that the application for compensation could not be made until in appropriate proceedings the order of attachment had been set aside. The earlier decision in Palaniandi Moopan v. Pachi Palaniyandi Moopan1, was apparently not cited to the learned Chief Justice. Palanisami Goundar v. Kaliappa Goundar1, considered both the decisions in. Palaniandi Moopan v. Pachi Palaniyandi Moopan2, and Rama Mudali v. Marappa Goundan3. It is important to notice that the learned Judge was dealing with two appeals, an appeal against an order making absolute an attachment before judgment and another appeal against the dismissal of an application under section 95 of the Code of Civil Procedure for compensation for wrongful attachment. Palaniandi Moopan v. Pachi Palaniyandi Moopan2, and Rama Mudali v. Marappa Goundan3. It is important to notice that the learned Judge was dealing with two appeals, an appeal against an order making absolute an attachment before judgment and another appeal against the dismissal of an application under section 95 of the Code of Civil Procedure for compensation for wrongful attachment. In the trial Court an application to vacate an ad interim attachment and the application for compensation were heard together. The learned Judge observed: “ In such circumstances it seems hardly fair to apply as against the appellant the rule embodied in Rama Mudali v. Marappa Goundan3 according to which an application for compensation for wrongful attachment would not lie until the attachment itself has been set aside. The trial Court had before it an application to set aside the attachment and abstained from passing orders on it until the hearing of the application for compensation was finished. Similarly in this Court I have before me both an appeal against the order confirming the attachment and an appeal against the dismissal of the application for compensation.” Incidentally he referred to the decision of Cornish, J., in Palaniyandi Moopan v. Pachi Palaniyandi Moopan2, and evidently the learned Judge thought that the view taken there is correct. He then proceeds to comment as follows on the decision of Beasley, C.J., in Rama Mudali v. Marappa Goundan3: ......with all respect to the learned Judge who decided the former case, it does seem to me that the requirements of an application under section 95 should be based on the language of the section and not on rules obtaining in Common Law with reference to a similar but not identical Common Law remedy. The decision in Rama Mudali v. Marappa Goundan3, is based on Lees v. Patterson4, which was a case in which damages for the wrongful issue of a writ of ne exeat were refused on the ground that the writ had not been set aside. But it seems to me that no such preliminary step has been prescribed in section 95 which alone governs the procedure in a summary application for compensation for wrongful attachment. But it seems to me that no such preliminary step has been prescribed in section 95 which alone governs the procedure in a summary application for compensation for wrongful attachment. I doubt whether one would be justified in hedging this remedy round with restrictions which the section itself does not import.“ These observations were really in the nature of obiter because there was a pending application for setting aside the order of attachment. Pausing for a moment here, with respect, we agree with the opinion expressed by Wadsworth, J., that the setting aside of the order of attachment is not an essential preliminary to the grant of compensation. An application under section 95 cannot be dismissed in limine on the ground that there is a subsisting order of attachment. But the learned Judge has not dealt with the other aspect mentioned by us at the opening of the judgment, namely, that an order making the attachment absolute after hearing the parties would mean that according to the Court the application for attachment was made on sufficient grounds, and if that order has become final, it will not be open to the same Court on a subsequent application under section 95 to hold to the contrary. It should not be overlooked that the Court to which an application under section 95 has to be made is the very Court which has passed the order of attachment. This aspect is stressed by Ramesam, J., in Venkatappayya v. Venkatappayya5, which was decided earlier than the cases above mentioned. In that case the District Munsif passed an order granting an ad interim injunction after notice to the defendant and after hearing both parties. Subsequently the defendant furnished security and the temporary injunction was dissolved. A few days later the defendant filed an application for compensation from the plaintiff on the ground that the application for temporary injunction was made on insufficient grounds. The learned Judge held that the petition did not lie. He doubted whether an award of compensation can be made in a case where the order of injunction was passed after hearing both the parties and it was found that there were sufficient grounds. He said: ”In my opinion the petition of the respondent does not lie. The learned Judge held that the petition did not lie. He doubted whether an award of compensation can be made in a case where the order of injunction was passed after hearing both the parties and it was found that there were sufficient grounds. He said: ”In my opinion the petition of the respondent does not lie. It is not pretended that the application was based on anything that appeared in the trial of the suit (which actually took place in March 1921). It is doubtful whether an award of compensation can be made in a case where the order of injunction was passed after hearing both the parties and it was found that there were sufficient grounds. and the plaintiff has not ultimately failed in his suit, (see Roulet v. Fetterle1). But assuming that even where after an order was made on hearing both parties and the plaintiff has ultimately succeeded, a petition lies under section 95 for compensation - such cases must be very rare indeed - the stage for such an application would be only when the suit is heard. ‘Up to then, such a petition would be premature - see Sokkalingam Chetty v. Krishnaswami Ayyar2. I am not saying that when the order was refused, compensation cannot be asked immediately without waiting for the suit. In my opinion to allow a petition of this kind immediately after the main petition was disposed of and without fresh materials as for a review or such as may appear at the trial of the suit, will be generally to permit a Court to come to a conclusion inconsistent with and opposed to its prior order. I do not think such an anomaly is intended by section 95." With great respect, we find ourselves in entire agreement with this view which appears to us to be both common sense and sound in law. I do not think such an anomaly is intended by section 95." With great respect, we find ourselves in entire agreement with this view which appears to us to be both common sense and sound in law. In Cyan Prakash Mital v. Kishori Lal3, the view taken by Beasley, G.J., in Rama Mudali v. Marappa Goundan4, was followed by Yorke, J., who referred also to the decision of the Calcutta High Court in Satish Chandra Banerji v. Lala Munilal5, where it has held that the rightness or wrongness of the order for attachment before judgment could not be canvassed in a subsequent suit on the question of damages for malicious prosecution, and such a suit was not maintainable where in the prior suit the order of attachment was not vacated and the right of the parties were determined on the basis that it was a right order. We look at the matter this way. There is a prior binding order that there are sufficient grounds for making an attachment before judgment. That order has been allowed to become final. So long as that order has not been set aside, either by appeal or review, or otherwise, an application under section 95 of the Code of Civil Procedure cannot be allowed on the ground that the order had been procured on insufficient grounds. It is really a case of applying the underlying basis of the rule of res judicata embodied in section 11 of the Code of Civil Procedure, which may not in terms apply. Before we apply this rule of res judicata, we think one essential condition must be satisfied. The Court must have heard and finally decided after hearing the parties whether there are sufficient grounds for ordering attachment before judgment. If, on the other hand, an order of attachment was only ex parte and there was no final order on the merits and after considering the objections of the defendant, then it will not be equitable to apply the rule. We realise that the view we are now taking is actually not to be found in any of the decisions cited to us. But we think it is the proper view to take. In the present case though a counter-affidavit was filed by the defendant, there does not appear to have been any considered order passed by the Court making the attachment absolute. But we think it is the proper view to take. In the present case though a counter-affidavit was filed by the defendant, there does not appear to have been any considered order passed by the Court making the attachment absolute. Actually the attachment was made absolute on the day on which the decree was passed, almost automatically. It cannot be said that the Court heard and finally decided whether there were sufficient grounds for ordering the attachment. In these circumstances there was no bar to the application under section 95 of the Code of Civil Procedure. The decision of the Kerala High Court in Subrayan v. Kochuvarkey6, does not carry the matter further than Palanisami Goundar v. Kaliappa Goundar’‘. In view of the findings of fact on the other points which are binding on us, the order of compensation must stand. The Civil Revision Petition is dismissed but there will be no order as to costs. R.M. ----- Petition dismissed.