Parur Central Bank Ltd. v. A. C. Chacko — 1989 DIGILAW 359 (KER)

Judgment :- 1. Petitioner before this Court is the decree-holder in O.S.No.401/79. Petitioner wanted to execute a mortgage decree he has obtained for sale of the immovable properties. Petitioner filed an Execution Petition, E.P.No.326/87. In this Execution Petition, the decree-holder filed E.A.No.710/87 to attach the immovable properties of judgment debtor No.7. The Execution Court dismissed the application for attachment. 2. The Execution Court said that the decree in the case was passed delineating the manner in which the execution is to be taken. It was said that though the decree is dated 20-6-1981 till 1987, the decree-holder has not taken any step to bring the charged properties to sale. It was further noticed that an Execution Petition filed earlier was dismissed for default in 1986. The application for attachment was made on the specific allegation that the charged properties will not be sufficient to satisfy the debt. The court below said "it is not sufficient, they are to take the risk and face the consequence of their carelessness". Decree-holder filed the present revision petition challenging the order of the Execution court. This Court passed an order of attachment on 7-3-1989. This attachment is now in force. Judgment-debtor No.7 filed an application for lifting the attachment. In fact, when the properties were attached by this Court, the order passed by the Execution Court raising the attachment once given by the Execution Court has been set at naught. Counsel for judgment-debtor No.7 submitted before me that in execution of the decree obtained by the revision petitioner, it is not possible under law to effect an attachment on the ground that the charged properties are insufficient for the decree debt. He submitted before me that the Execution Court has been given a mandate how to execute the decree and in the light of the mandate given by the decree, there is no scope for attaching the properties on the ground that the charged properties are insufficient to satisfy the decree. 3. Counsel for judgment-debtor No.7 submitted before me that the attachment effected, cannot be treated as an attachment before judgment. The attachment itself is not a mode of execution and the mode of execution is controlled by the decree in the case, which makes it specific that personal execution is possible only after exhausting the execution in regard to the charged properties. The attachment itself is not a mode of execution and the mode of execution is controlled by the decree in the case, which makes it specific that personal execution is possible only after exhausting the execution in regard to the charged properties. He referred me to the provisions of the Civil Procedure Code in regard to the passing of the preliminary decree in a mortgage suit for the sale of the property as contemplated by the Code and the different stages envisaged by the Code in such a suit and also the provision that was applicable after the Kerala amendment as far as courts in Kerala were concerned in regard to mortgage suit for the sale of the property charged. 4. I shall briefly refer to the provisions contained in 0.34 R.4,5 and 6 of the Code. R.4 provides that in a suit for sale, the court shall pass, if the plaintiff succeeds, a preliminary decree in accordance with Clauses (a), (b) and (c)(i) of sub-rule (1) of R.2 of C.P.C. and provides that if the defendant defaults payment the plaintiff shall be entitled to apply for a final decree directing that the mortgaged property or a sufficient part thereof is sold and the proceeds of the sale be paid into court and applied in payment of what has been found or declared under or by the preliminary decree due to the plaintiff, together with such amount as may have been adjudged due in respect of subsequent costs, charges, expenses and interest, and the balance if any, be paid to the defendant or other persons entitled to receive the same. Sub-rule (2) of R.4 grants power to court to extend the time fixed for the payment of the amount found or declared due under sub-rule (1) of R.4. R.5 provides for passing of final decree. It provides that if payment has not been made in accordance with sub-rule (1) of R.5 the court shall, on application made by the plaintiff, pass a final decree directing that the mortgaged property or a sufficient part thereof be sold and the proceeds of the sale be dealt with in the manner provided in sub-rule (1) of R.4. It has to be noted that R.5 provides only for sale of the mortgaged property or sufficient part thereof. It has to be noted that R.5 provides only for sale of the mortgaged property or sufficient part thereof. R.6 postulates the position where the decree is not satisfied by the sale of the charged property and it provides that where the net proceeds of any sale held under R.5 are found insufficient to pay the amount due to the plaintiff, the court, on application by him, may, if the balance is legally recoverable from the defendant otherwise than out of the properties sold, pass a decree for such balance. In fact R.6 gives power to the court to pass a personal decree for the balance amount. 5. Obviously the object of the amended Kerala Rule was to enable such a decree to be passed in the mortgage suit itself and to avoid multiplicity of proceedings. But it has to be noted that a personal decree under the Rule will, however, be granted only after the mortgagee has exhausted his remedies against the security; in other words it will be granted only after the sate has been carried out and the deficiency ascertained; it is a relief which will not be granted to the mortgagee until that stage is reached. 6. From the Rules I have adverted to, we got a picture of the scheme of remedy provided by the Code for the realisation of the amount by the sale of the property mortgaged. State amendments made to these Rules made the process presto and comprehensive. Different stages contemplated by the code were not applicable to Kerala by virtue of the amendment O.34 R.3 of C.P.C. provided that a comprehensive decree can be passed for the realisation of the mortgage amount by the sale of the property. The rule says that in a suit for sale, if the plaintiff succeeds, the court shall pass a decree in accordance with Clauses (a) and (b)(i) of R.2(1). It then provides that the court shall direct that in default of the defendant paying the amount, the mortgaged property or a sufficient part thereof be sold and that the proceeds of the sale be applied after deducting therefrom the expenses of the sale in payment of what is declared due to the plaintiff together with subsequent interest and subsequent costs. Further it provides that if any balance is found that has to be paid to the defendant or other persons entitled to receive the same. The Rule then proceeds to say that in case the net proceeds of such sale be insufficient to pay the amount due to the plaintiff, the balance, if legally recoverable from the defendant otherwise than out of the property sold be paid by the defendant personally R.3 thus provided for passing a personal decree hedged with conditions and that no fresh application for passing a personal decree was contemplated by the amended provision of the Code. The decree in this case has been passed following the provisions under 0.34 R.3 of C.P.C. 7. Counsel for the respondent submitted that in view of the provisions contained in 0.34 R.3 as stood amended, the decree holder cannot claim personal execution. In this case, the attachment of immovable properties are sought on the ground that the mortgage security is insufficient to satisfy decree. Counsel for the revision petitioner submitted that the attachment effected by this Court is sustainable in law. Counsel submits that this Court should discern a power in the Execution Court to effect attachment if the court is satisfied that the mortgage security is insufficient to realise the mortgage amount, otherwise it will work out unmerited failure of justice. 8. Counsel for the judgment-debtor referred me to certain decisions to support this position. He referred me to 1964 KLT 1101 Ulahannan Job v. The Prudential Trust, Vaikom and another). In Para.4, Raman Nayar, J. as he then was made an observation thus:- "(4) Lastly it is said on the authority of Komachi Kather v. Pakker ILR 20 Mad. 107, Damodar v. Vyanku, ILR 31 Born. 244, Munawar Husain v. Jani Bijai Shankar, ILR 27 All 619 and Thayammal v. Muthukumaraswami, AIR 1929 Mad. 881; C.M.A. 336 of 1927 at p.884 that even though the decree in this case is a composite decree, the executing court should have waited until the property had been sold and had proved insufficient before ordering personal execution. In the composite decree considered in these, cases, like the one upheld by the Judicial Committee in Mr. Jeuna Bahu v. P. Narayan Mahta. In the composite decree considered in these, cases, like the one upheld by the Judicial Committee in Mr. Jeuna Bahu v. P. Narayan Mahta. AIR 1918 P.C.159 the personal decree granted was conditional on the proceeds of the sale of the property being found insufficient, and naturally, personal execution could be had only after the condition had been satisfied. But, in the present case, the decree allows unconditional concurrent execution against the property mortgaged as also otherwise, and the execution court can only follow the decree." In the above case, the main question that was canvassed before this Court was the executability of the decree. It was contended that even though 0.34 of Indian Code came into force in Travancore area, the trial court passed a decree following the corresponding provision in the Travancore Code. The practice in Travancore was to pass a final decree straight away for the sale of the mortgaged property and by personal execution. The contention raised before this Court was that such a decree is void. This Court did not agree. The personal execution was found to be valid. But the observation made by Justice Raman Nayar, counsel for the judgment-debtor submitted, is relevant to decide the question raised in this case. 9. In 1951 KLT 601 (Ittaman Nair v. Andy & others), Joseph Vithayathil, J. distinguishing 31 Cochin 452 (Thavu v. Achuthan Nair and others) observed that "An attachment prior to a decree is not an attachment for the enforcement of the decree but it is a step taken merely for the purpose of preventing the debtor from delaying or obstructing such enforcement when the decree subsequently passed shall be sought to be executed. An attachment after decree is, on the other hand, an attachment made for the immediate purpose of carrying the decree into execution, and it presupposes an application on the part of the decree-holder to have his decree executed. Thus an attachment before judgment has not the same effect as an attachment in execution, although it is not necessary to reattach the property in execution when it has been attached before judgment". This was a case relating to attachment before judgment in a suit for sale of the mortgaged property. It was contended that in view of 0.34 R.3 of the Cochin Civil Procedure Code, an attachment before judgment under 0.38 R.5 of C.P.C. is not possible. This was a case relating to attachment before judgment in a suit for sale of the mortgaged property. It was contended that in view of 0.34 R.3 of the Cochin Civil Procedure Code, an attachment before judgment under 0.38 R.5 of C.P.C. is not possible. His Lordship Justice Vithayathil did not agree for the reasons stated which I have quoted above. In the above case, Vithayathil, J. held that "Where the mortgage property is insufficient to discharge the mortgage debt other properties of the defendant can be attached before judgment if the requirements of 0.38 R.5 are satisfied" and for this proposition the following decisions were relied on: AIR 1943 Bombay 94 (Emperor v. Kisan Sakharam Patil), AIR 1931 Bombay 329 (Shridhar Ramachandra Marathe v. Lakshman Vinayak Bhave), AIR 1933 All. 191 Mohammad Shafiq Ahmad and another v. Mt. Ramkatori and another), AIR 1929 Lah. 402 (Muhammad Din v. Devi Das), A.I.R. 1925 Pat. 291 (Jotirmoyee Debi v. Raghunath Pathak) A.I.R. 1936 All 408 (Shyam Lal v. Bahal Rai). The distinction between attachment before judgment and attachment in execution has been pointed out thus:- "An attachment before judgment does not for all purposes stand on the same footing as an attachment in execution proceedings. This indeed is obvious from first principles. The attachment does not of necessity ensure the property to the person who attaches it. He became entitled to proceed against it only if he eventually gets a decree". 10. In A.I.R. 1918 Privy Council 159 (Mt. Jeuna Bahu and others v. Parameshwar Narayan Mahta and others), Lord Buckmaster while delivering the judgment for the judicial committee of the Privy Council said that "The words of the section are satisfied in cases where the Court passes a decree that, on the happening of the event when the net proceeds of the sale are found to be insufficient, the balance should be paid. The order, though made at the time of the decree for the sale of the mortgaged estate, operates at a future date, and is made in such terms that it can only operate when the sale has failed to satisfy the debt and this is the event specified and defined in the section as the event when the decree can be made". This case was decided under the Transfer of Property Act, S.90. This case was decided under the Transfer of Property Act, S.90. In fact, in this case the attachment and sale were resorted to after the sale of the mortgaged property. But in this case, the Privy Council has made the above observation commending the construction to be placed on S.90 of the Transfer of Property Act, 1882. The Privy Council referring to the contentions raised by the appellants said that the opening words of the Section, viz., "When the net proceeds of any such sale are insufficient to pay the amount due for the time being on the mortgage, if the balance is legally recoverable from the defendant otherwise than out of the property sold, the Court may pass a decree for such sum" establish as a condition precedent to the power of decreeing payment of the balance that the mortgaged property must first be sold and found insufficient to satisfy the debt and said are not very correct. The Privy Council said that "It is admittedly a strict and technical construction of the statute and one for which no reason can be assigned and from which no advantage can possibly be derived by any mortgagor. It would be unfortunate in the statute by its terms rendered necessary the adoption of this contention; but in their Lordships' opinion it is not necessary so to construe the Act". 11. Counsel referred me to 31 Cochin 452. The wording of R.3 of 0.34 of the Code is identical with the wording in the Civil Procedure Code 29 of 1111 of the Cochin Civil Procedure Code. In this decision, the court said that'whatever may be the view taken by some of the British Indian decisions regarding the propriety or legality of a personal decree passed by a court along with a decree for sale of the property, the provisions of the Cochin Civil Procedure Code not only warrant but expressly direct the passing of such a decree. An attachment of standing crops in execution of a mortgage decree before any attempt to sell the property will therefore be premature and invalid'. This decision has followed the Privy Council decision referred to by me in the earlier paragraph. An attachment of standing crops in execution of a mortgage decree before any attempt to sell the property will therefore be premature and invalid'. This decision has followed the Privy Council decision referred to by me in the earlier paragraph. One decision of the Calcutta High Court and another decision of the Madras High Court were found to be not applicable to the point in issue, particularly in view of difference in the language used in the provision. There is not much discussion about the question. The attachment was sought while execution of the mortgaged decree under 0.38 R.5 (attachment before judgment). The court did not accept this argument. The court said that in fact the attachment was sought in execution of the decree and a conditional decree is allowable under R.3 of 0.34 of the Cochin Civil Procedure Code. Since the decree-holder contended that the attachment is justifiable under 0.38 R.5 which dealt with attachment before judgment, the court did not consider in depth the effect of attachment and the purpose for which attachment is effected and also the power of the court to effect an attachment outside 0.38 R.5 of the Code when there was a decree under 0.34 R.3 of the Code. 12. Now I shall refer to two Supreme Court decisions, A.I.R. 1962 S.C.1464 (Krishna Prasad and others v. Gouri Kumari Devi) and AIR 1987 SC 1078 (Union Bank of India v. Manku Narayana). In AIR 1962 S.C. 1464 the mortgaged estate vested with the State and the decree was a composite decree directing execution of personal decree only after exhausting the remedy against the mortgaged property. The court said that the decree require that the appellants must first seek their remedy from the compensation amount paid by the Government before they can proceed against the non-mortgaged property of the respondent. It was said that the relevant directions in the decree do not justify the appellants' contention that because the mortgaged property has vested in the State, they are entitled to execute the personal decree without taking recourse to the remedy available to them under S.24(5) of the Act. It was said that the relevant directions in the decree do not justify the appellants' contention that because the mortgaged property has vested in the State, they are entitled to execute the personal decree without taking recourse to the remedy available to them under S.24(5) of the Act. From the observations of the Supreme Court it is clear that what the Supreme Court has said is that the decree-holder is entitled to execute personal decree only after taking recourse to the remedy available to them under S.24(5) of the Act, which contemplates a claim in regard to the compensation payable for the estate which vested with the State. But it has to be noted that the Supreme Court has only said that the directions in the decree do not justify an entitlement to the decree-holder to execute the personal decree. The wording used are execution of personal decree. In that case what had happened was that an application was made by the decree-holder to execute the decree against the respondent by proceeding against the non-mortgaged property. 13. Counsel for the decree-holder in the case at hand submitted that what is sought here is not execution of the personal decree, but only an attachment. Attachment by itself cannot be considered execution of personal decree. In AIR 1987 SC 1078, Khalid, J. observed thus: "The decree in execution is a composite decree, personally against the defendants including the respondent and also against the mortgaged property. We do not pause to consider whether the two portions of the decree are severable or not. We are of the view that since a portion of the decreed amount is covered by the mortgage, the decree-holder Bank has to proceed against the mortgaged property first and then proceed against the guarantor. Since the High Court was not told that such steps were taken, we do not think we will be justified in holding that the High Court was in error in making the direction which is under challenge before us. The appeal, under these circumstances, has therefore to be dismissed". Of course, what is said is the primary idea of the composite decree in a suit for sale of the mortgaged property. 14. I may now refer to three other decisions, which were brought to my notice by the counsel for the judgment-debtor, AIR 1929 Mad. The appeal, under these circumstances, has therefore to be dismissed". Of course, what is said is the primary idea of the composite decree in a suit for sale of the mortgaged property. 14. I may now refer to three other decisions, which were brought to my notice by the counsel for the judgment-debtor, AIR 1929 Mad. 881 (Thayammal and others v. A. T. Muthukumaraswami Chettiar), AIR 1954 Bom. 410 (Govind Krishna and others v. Malhar Narsingrao Nadgu) and AIR 1964 Mad. 233 (K. P. Mohammed Ibrahim v. The State Bank of Travancore, Trivandrum). 15. Construing a decree in AIR 1929 Mad. 881, the court observed that "The object of the last clause, is to enable the mortgage decree-holder to proceed in further execution against the other properties of the defendants for costs, if they have not been recovered by the sale, but its effect is not to enable him to take out execution against the other properties of the mortgagors even before the sale of the mortgaged properties has been made". Here also emphasis must be given to the words used 'decree does not enable the decree-holder to take out execution against the other properties of the mortgagors even before the sale of the mortgaged properties. In fact the bar is to take out execution in regard to non-mortgaged properties. In A.I.R. 1954 Born. 410, Gajendragadkar, J. said thus: "The sequence has been clearly indicated in the decree and the decree-holder had to follow this sequence while executing this decree. Under this decree, it was only after the mortgaged property as well as the charged properties were sold that the decree-holder could have executed the decree as a personal decree and that too to recover the balance that may still remain outstanding. We must, therefore hold that the decree-holder would not have been able to proceed against the movable properties of the judgment-debtor in darkhast No.364 of 1942". The question that was discussed by Gajendragadkar, J. as he then was is as to the nature of darkhast No.364 of 1942. It was contended that the darkhast cannot be treated as an application made in accordance with law. The question that was discussed by Gajendragadkar, J. as he then was is as to the nature of darkhast No.364 of 1942. It was contended that the darkhast cannot be treated as an application made in accordance with law. It was so contended because the decree has given a clear mandate as to the sequence of the mode of execution and if only the decree-holder has exhausted his remedies against the mortgaged property, he can file darkhast No.364 of 1942 to proceed against the movable properties of the judgment-debtor. It has to be noted that the case was mainly concerned about the application as to Art.182(5) of the Limitation Act, 1908 and considering that question the court was more concerned about the nature of the application for the purpose of determining the requirement of Art.182(5) as to whether the application was made in accordance with law. In short, an application for execution filed in a case where the relief sought in the application is premature in accordance with law for the purpose of Art.182(5). The court held that an application, which is otherwise made in accordance with law and the only infirmity is that the relief claimed by it is premature should not be regarded as not one made in accordance with law. The court found that the reason for stating so is that the decision about the character of an execution application should not be made to depend upon the ultimate view that a court may take as to the right of the decree-holder to obtain the particular relief claimed in the application. Finally the court said that "though the relief claimed in the second execution was premature according to the terms of the decree the application was nevertheless one in accordance with law within the meaning of Art.182(5)". The above aspect of the case has got significant relevance in applying the ratio of that decision for the purpose of deciding the case at hand. 16. In AIR 1964 Mad. 233 the court was considering the case where A was a debtor and B his surety. In the suit brought by the creditor against both, B claimed that the plaintiff should be directed to proceed against him only if the decree amount is not realised from A and his properties which were secured by him with the plaintiff-creditor. 233 the court was considering the case where A was a debtor and B his surety. In the suit brought by the creditor against both, B claimed that the plaintiff should be directed to proceed against him only if the decree amount is not realised from A and his properties which were secured by him with the plaintiff-creditor. This request was acceded to in the judgment which directed a separate decree being passed against B. The judgment did not contain any direction that the decree against B should concurrently subsist with the mortgage decree against A. A separate decree was accordingly passed against B. Further the judgment was not very clear as to whether B's liability was to be concurrent with the liability of the mortgaged properties. The reading of the judgment as a whole led to the conclusion that it was only after the mortgaged properties were exhausted, and when the question of personal liability of A was to be taken up, that there should be available the personal decree against B to pay the amount. Decree-holder applied for execution by arrest of B without first proceeding against the properties secured. Ramachandra Iyer C. J. speaking for the Division Bench observed thus:- "We are, therefore, of opinion that the execution petition, filed as it has been for the arrest of the second judgment-debtor could not be maintained before the mortgaged properties have been exhausted". In this case also it has to be noted that what was sought for by the decree-holder is the actual execution of the personal decree. 17. Now I shall turn to one other aspect of the question. When the decree-holder has applied for attachment even before exhausting the remedy against the charged properties, can such an application in the E.P. be considered as execution of the personal decree given in the eventuality of the failure to obtain the decree amount by the sale of the property. S.51 deals with how the court should order execution of the decree. Attachment by itself is not a mode of execution under S.51 though attachment and sale is a mode of execution recognised by S.51 of the Code. By attachment, no amount is realised by the decree-holder. 18. In AIR 1965 Ker. S.51 deals with how the court should order execution of the decree. Attachment by itself is not a mode of execution under S.51 though attachment and sale is a mode of execution recognised by S.51 of the Code. By attachment, no amount is realised by the decree-holder. 18. In AIR 1965 Ker. 288, Ouseph Skaria of Naduvilaparambil and Others v. Cherian Joseph of Pooppallil and others, Raman Nayar, J. as he then was, has considered the character, effect and nature of an attachment under 0.21, R.42. His Lordship observed "That order, as we have seen is an order made with jurisdiction and valid so long as it is not set aside, and there can therefore be no question of the attachment having in fact, been made under O.XXI, R.42 and not under O.XXXVIII, R.5, even if the former were the proper provision of law to apply. And with great respect to what has been said in Viraraghava v. Varada, ILR 5 Mad. 123, Jai Narain v. Bankey Lal, AIR 1917 All. 153, Ramasami Iyer v. Vedambal Ammal, AIR 1934 Mad. 604 and Jagat Tarini Dassi v. Surajirangan Pai, AIR 1941 Cal. 357 I doubt whether an attachment effected under O.XXI, R.42 can properly be called a proceeding in execution so that any question relating to such an attachment between the parties to the suit has the effect of attracting S.47 of the Code. A decree which merely directs an enquiry as to rent or mesne profits or any other matter is not a decree for the payment of money and is only a decree that can, as a result of the enquiry, give rise to such a decree. Such a decree is not executable in the sense in which that word is ordinarily understood and I fail to see how an attachment in pursuance of such a decree can relate to its execution, discharge or satisfaction. Under S.51 of the Code, attachment by itself is not a mode of execution. Execution is either by attachment or sale, or by sale without attachment of any property, and the argument that the words "attachment and sale" appearing in clause(b) of the section should be read disjunctively can scarcely be accepted since that would render the words, "or by sale without attachment." appearing in the clause otiose. Attachment is a process in execution but does not, of itself constitute execution". Attachment is a process in execution but does not, of itself constitute execution". What is prevented by the decree is execution of a personal decree before exhausting the execution against the properties charged by the mortgage. Raman Nayar, J. as he then was, has specifically stated that attachment is a process in execution, but does not of itself constitute execution. This, His Lordship said while considering 0.21, R.42.0.21 certainly deals with execution. But Raman Nayar, J. as he then was said that even an attachment presumably under 0.21 R.42 is nothing more than a process available with the Execution Court to facilitate the execution of the final decree that is yet to be passed and so it can scarcely be regarded as the execution of a decree. His Lordship further said "That it appears Order XXI is a mere matter of convenience and does not necessarily mean that it is a provision for execution, and I should think that the words, "as in the case of an ordinary decree for the payment of money" mean no more than that the procedure to be followed for the attachment is the same as in the case of an ordinary decree for payment of money. To my mind they bear much the same meaning as the words "in the manner provided for the attachment of property in execution of a decree" appearing in O.XXXVIII, R.7. If this principle is applied, I feel that the Execution Court, if it is satisfied that circumstances are existent which justify the court to effect an attachment, can order an attachment to prevent an abortive future execution of a personal decree. Certainly here a conditional personal decree is given, which can be executed on the happening of certain eventualities. In such a case the court must be clothed with the power of taking such steps with a view to facilitate the execution of the conditional decree that is yet to become an executable decree on the happening of certain conditions stipulated in the decree. Such a power is necessary for doing justice in the case. Certainly this aspect has not been considered in the decisions cited before me by the counsel for the respondent-judgment-debtor. The only case where an attachment was sought in a decree for sale of the property as in this case is 31 Cochin 452. Such a power is necessary for doing justice in the case. Certainly this aspect has not been considered in the decisions cited before me by the counsel for the respondent-judgment-debtor. The only case where an attachment was sought in a decree for sale of the property as in this case is 31 Cochin 452. All other cases referred to by the counsel for the respondent are distinguishable on the peculiarities of the facts of those cases and I have noted the significant differences in those cases when I have considered those cases. 19. The Execution Court also in appropriate cases exercises the inherent power of the court. The Code was never intended to be and is exhaustive and that is why expressly inherent power of the court is saved by a particular provision. I may confess candidly that it is difficult for me to accept or to believe that the court's powers are limited and circumscribed by procedural codes and are unequal to its desire to order, that which it believes to be just. There may be cases and circumstances which are not provided by the Code and I refuse to believe that in cases where or in circumstances revealed in a case where even after seeing the injustice in the matter the court must fold its hands and say that nothing can be done and permit a failure of justice. The court has always therefore to meet the ends of justice acted upon the assumption of the possession of an inherent power to act so as to render real and substantial justice for the administration for which alone it exists. The Supreme Court in Keshardeo v. Radha Kishen (AIR 1961 SC 218) has made it clear that the Execution Court can also exercise inherent power saved by S.151 CPC. In ILR 1973 (2) Ker. 214 (Kochupennamma v. The Bank of Deccan Ltd., Bhaskaran, J.) also has held that the Execution Court in appropriate cases, can exercise inherent powers under S.151 CPC. This view has been reiterated by John Mathew, J. in a recent decision reported in 1989 (1) KLT 599 (Dohara Beevi v. Bhaskaran). The Court has held that the Execution Court also can exercise some power under S.151 CPC. It has to be remembered that every court including Execution Court is constituted for the purpose of rendering justice in accordance with law. The Court has held that the Execution Court also can exercise some power under S.151 CPC. It has to be remembered that every court including Execution Court is constituted for the purpose of rendering justice in accordance with law. This is the plain internment and the prima devoir of the court and so it must be deemed that the court possess a necessary corollary, and as inherent in its very constitution, all such powers as may be necessary to do the right and to undo a wrong in the course of the administration of justice - vide AIR 1977 SC 1348 (Jaipur Mineral Development Syndicate, Jaipur v. The Commissioner of Income-tax, New Delhi). We have to remember that the inherent power is a necessity and its breach is co-extensive with the necessity-vide AIR 1976 S. C. 152 (The Newabganj Sugar Mills Co. Ltd. and ors. v. The Union of India and ors). 20. In this case, I hold that the attachment that can be effected on the ground that the security is insufficient for satisfying the decree before exhausting the execution against the charged properties is not itself execution of the 2nd part of the decree. If it is not execution of the decree, even if it is a process in execution such an attachment is not barred by the decree or by 0.34 R.3. It has to be noted that Gajendragadkar J. said that an application for execution of a similar conditional decree, before conditional eventuality took place is an execution application in accordance with law for the purpose of saving limitation. In this case, this Court has passed an interim attachment. I uphold that interim attachment and direct the Execution Court to consider the objections regarding attachment on merits. I make it clear that if the court is satisfied that there are good grounds to believe that the security is insufficient and that the other conditions for effecting the attachment under the Code are in-existent, the interim attachment ordered by this Court can be made absolute. Before this Court some claim petition have been made by certain persons. That claim matters also may be considered and disposed of by the Execution Court, if the attachment is made absolute on merits. With the above observations, the Civil Revision Petition is allowed. Allowed.