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1979 DIGILAW 465 (MAD)

M. Veluchamy Gounder v. K. Mani

1979-10-18

MOHAN

body1979
Judgment :- 1. The revision arises under the following circumstances: The respondent-decree-holder filed E.A. No. 258 of 1978 in E.P. No. 152 of 1978 in O.S. No. 172 of 1977, under S. 145, C.P.C. to direct the revision petitioners to produce the attached movables, which are in their custody, failing which necessary orders may be passed permitting the decree-holder to proceed against the revisior petitioners-sureties. 2. The said suit was originilly dismissed for default on 6th December, 1977. Later, the order of dismissal was set aside and the suit was restored to file and the suit was decreed ex parte on 29th March, 1978. The movable properties of the judgment-debtor were attached before judgment on 30th September, 1977, as evidenced by Exs, A.1 to A3 and A.7, since the defendant did not furnish security. 3. The first petitioner herein took possession of the movables attached before judgment and petitioner 1 and 2 executed surety bonds as evidenced by Exs. A.5 and A.6 for the satisfaction of the suit amount. The judgment-debtor contested the attachment and after contest, the attachment was made absolute on 12th December, 1977. The decree-holder levied execution against the judgment-debtor by way of arrest in E.P. 79 of 1978 and arrest was orcered and the defendant-judgment-debtor filed I.P. No. 12 of 1978 on 22nd September, 1978 and asked for interim protection. The same was ordered and the execution petition was closed. Thereafter, the application against the sureties for the same relief was filed. It was contended on behalf of the sureties that inasmuch as the suit was dismissed for default on 6th December, 1977, the attachment ceased and consequent to the cessation of that attachment, their liability to purchase the movables as undertaken in terms of Exs. A.5 and A.6 also ceased. Therefore, the application by the decree-holder was liable to be dismissed. 4. The learned Subordinate Judge of Udurralpet overruled this objection and granted permission to proceed against the present petitioners, who stood sureties for the production of the movables under Exs. A 5 and A 6, for the realisation of the decree debt. It is under these circumstances, the present revision has been preferred. 5. 4. The learned Subordinate Judge of Udurralpet overruled this objection and granted permission to proceed against the present petitioners, who stood sureties for the production of the movables under Exs. A 5 and A 6, for the realisation of the decree debt. It is under these circumstances, the present revision has been preferred. 5. It is urged by the learned counsel for the petitioners that having regard to the terms of O. 38, R. 11 (A) (2), C.P.C. once the suit was dismissed for default on 6th December, 1977, the attachment ceased and therefore, the liability to produce the movables equally ceased. That being the position, the Court below erred in according permission to the decree-holder to proceed against the revision petitioners based on the terms of the suretyship as evidenced by Exs A.5 and A.6. The suretyship lasted only as long as the attachment lasted and not afterwards. The effect of the order under revision would be to enable the decree-holder to realise the decree amount from persons, who were not the judgment-debtors. Nor is there anything to suggest under Exs. A 5 and ?6 that the revision pttitioners undertook to pay off the decree amount. As against this, the learned counsel for the respondent would arge that notwithstanding the cessation of the attachment by the dismissal of the suit on 6th December, 1977, yet, inasmuch as the sureties were to satisfy the decree, the order under revision must be held to be correct. 6. In order to appreciate the point involved, I may extract O. 38, R. 11 (A)(2) which is to the following effect— “(2) An attachment made before judgment in a suit which is dismissed for default shall not become revived merely by reason of the fact that the order for the dismissal of the suit for default has been set aside and the suit has been restored”. The corresponding form is Form No. 6, which deals with the security for property; that also may be extracted:— Security for the production of property. Whereas at the instance of the plaintiff in the above suit the defendant has been directed by the Court to furnish security in the sum of Rs to produce and place at the disposal of the Court the property specified in the schedule hereunto annexed; Therefore. Whereas at the instance of the plaintiff in the above suit the defendant has been directed by the Court to furnish security in the sum of Rs to produce and place at the disposal of the Court the property specified in the schedule hereunto annexed; Therefore. I have voluntarily become surety and do hereby bind myself, my heirs and executors, to the said Court, that the said defendant shall produce and place at the disposal of the Court, when required, the property specified in the said Schedule, or the value of the same, or such portion thereof as may be sufficient to satisfy the decree; and in default of his so doing bind myself, my heirs, and executors to pay to the said Court, at its order, the said sum of Rs. or such sum not exceeding the said sum as the said Court may adjudge. Schedule” Therefore, the sureties under Exs. A.5 and A.6 were only burdened with the obligation to produce the movables and if the menables are not so produced, to pay the sum as ordered by the Court. This cannot by any means have the effect of satisfying the liability under the decree of the judgment-debtor. Once in terms of the O. 3, R. 11 (A) sub-R (2), the attachment ceased, the liability to produce the movables also ceased and the payment of the sum in the alternative, as contemplated in Form No. 6 also would come to an end. Therefore, the Court erred in according permission to the decree-holder to proceed against the revision petitioners, who were merely the sureties for the production of the movables pursuant to the order of attachment before judgment. It may be stated that they did not in any manner undertake to discharge the liability of the judgment, debtor under the decree. That is virtually what the Court below has done. Therefore, I set aside the order under revision. The civil revision petition is accordingly allowed. There will be no order as to costs.