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2006 DIGILAW 522 (KER)

Sidharthan v. Praveen Chandran

2006-08-10

J.B.KOSHY, M.SASIDHARAN NAMBIAR

body2006
JUDGMENT : J.B. KOSHY, J. 1. Whether attachment of property before judgment can be withdrawn under O.XXXVIII, R.9 after suit is decreed under any circumstance especially in view of O.XXI, R.55 and if so whether the power can be used by the trial court when the matter is pending in appeal or only Appellate Court can exercise the power are the main questions to be considered in this order. The appellant in R.F.A., (petitioner in the Writ Petition) is the defendant in O.S.No.171 of 1997 on the file of the Sub Court, Thrissur. The suit is one for realisation of money. The plaintiff obtained an order of attachment before judgment with respect to some of the properties belonging to the petitioner. Finally, the suit was decreed in favour of the plaintiff and the defendant filed the first appeal R.F.A.No.610 of 2005. I.A.No.3954 of 2005 was filed for staying the execution of the decree. A Division Bench of this Court ordered interim stay on condition that appellant furnishes security for the decreetal amount to the satisfaction of the court below within one month from 7-12-2005. It is the case of the petitioner that he furnished the security to the satisfaction of the court and the court accepted the same and thereafter he filed I.A.No.865 of 2006 for lifting the attachment under O.XXXVIII R.9 of the Code of Civil Procedure. He wanted to produce the attached properties as security for the loan to be obtained from the bank for development of his business. The court rejected the petition as not maintainable as there is no direction from the appellate court to lift the attachment. Against Ext.P2 order rejecting the petition to lift the attachment, the present Writ Petition was filed under Art. 227 of the Constitution of India. When the Writ Petition came up for hearing before the learned single Judge, the learned single Judge referred the matter to the Division Bench doubting the correctness of the decision of a single Judge of this Court in Joy v. Cherukutty ( 1991 (1) KLT 393 ). In the above decision, it was held that once the suit is decreed, order of attachment can be lifted or withdrawn only under O. XXI, R.55 of the Code of Civil Procedure. The provision under O.XXXVIII, R.9 cannot be pressed into service after the disposal of the suit. In the above decision, it was held that once the suit is decreed, order of attachment can be lifted or withdrawn only under O. XXI, R.55 of the Code of Civil Procedure. The provision under O.XXXVIII, R.9 cannot be pressed into service after the disposal of the suit. According to the learned single Judge, the above decision requires reconsideration. So, when the Writ Petition came up before us, we have called for the records of the first appeal also. 2. We may now quote the relevant provisions to be considered in this case. O.XXI, R.55 of CPC deals with automatic removal of attachment once the decree is satisfied. The above reads as follows: “55. Removal of attachment after satisfaction of decree:-- Where - (a) the amount decreed with costs and all charges and expenses resulting from the attachment of any property are paid into Court, or (b) satisfaction of the decree is otherwise made through the Court or certified to the Court, or (c) the decree is set aside or reversed, the attachment shall be deemed to be withdrawn, and, in the case of immovable property, the withdrawal shall, if the judgment-debtor so desires, be proclaimed at his expense, and a copy of the proclamation shall be affixed in the manner prescribed by the last preceding rule." The above provisions show that even without any order, once the decree is satisfied or decree is set aside or reversed, the attachment is deemed to be withdrawn, but, withdrawal of attachment under O. XXXVIII, R.9 is not controlled by this rule. The above lifting of the attachment is automatic. The judgment debtor is also free to get a proclamation of withdrawal of attachment of immovable property at his expense, if he so desires. This rule provides for automatic termination of attachment as held in Sasthi Charan Biswas Banik & Ors. v. Gopal Chandra Saha & Ors. (AIR 1937 Cal. 390) and Radhabai Gopal Joshi v. Gopal Dhondo Joshi & Anr. (AIR (31) 1944 Bom. 50). This rule is not exhaustive of all cases of withdrawal of attachment as held in Pedda Edla Ram Kishtiah v. Manne Pochiah ( AIR 1967 A.P. 148 ). O.XXI, R.57 deals with determination of attachment in execution of a decree. (AIR 1937 Cal. 390) and Radhabai Gopal Joshi v. Gopal Dhondo Joshi & Anr. (AIR (31) 1944 Bom. 50). This rule is not exhaustive of all cases of withdrawal of attachment as held in Pedda Edla Ram Kishtiah v. Manne Pochiah ( AIR 1967 A.P. 148 ). O.XXI, R.57 deals with determination of attachment in execution of a decree. In Tony v. Navodaya Enterprises ( 2003 (2) KLT 866 ), a Division Bench of this Court held that O.XXI, R.57 is applicable only if attachment is made in execution of the decree, but, attachment under O.XXXVIII, R.11 in the pre-decreetal stage will continue in force until full satisfaction of the decree as provided under O.XXI, R.55 or lifting of the attachment. Here, in this case, under O.XXXVIII, R.5 when an attachment before judgment is ordered, the defendant against whom such an order is passed has got two remedies: he may either appear before the trial court and furnish security or show cause as provided under R.6 and R.6 (2) provides that where defendant shows such cause or furnishes the required security and the property specified or any portion of it has been attached, the court shall order that the attachment should be withdrawn or make such other it thinks fit. 3. O.XXXVIII, R.9 gives power to the civil court to lift the attachment on certain conditions. O.XXXVIII, R. 9 provides as follows: “9. Removal of attachment when security furnished or suit dismissed:- Where an order is made for attachment before judgment, the Court shall order the attachment to be withdrawn, when the defendant furnishes the security required, together with security for the costs of the attachment or when the suit is dismissed.” The word used in the section is 'shall'. According to this rule, when the defendant furnishes sufficient security required for the entire amount including cost claimed, it is mandatory for the court to withdraw the attachment ordered as held in Letchumanan v. Karuppan ( 1998 (II) M.L.J. 126 ). But, unlike automatic lifting of attachment under O. XXI, R.55 an order from the court is necessary to lift the attachment under this rule. In Joy's case referred earlier, the court was of the view that under O. XXXVIII, R.9, the power of the Court to lift the attachment cannot be used once the suit is decreed, but, the wordings in the rule will not justify such an interpretation. In Joy's case referred earlier, the court was of the view that under O. XXXVIII, R.9, the power of the Court to lift the attachment cannot be used once the suit is decreed, but, the wordings in the rule will not justify such an interpretation. O. XXXVIII, R.9 obligates the court to lift the attachment when the defendant furnishes the security required together with security for the cost of attachment or when the suit is dismissed, but, there is no prohibition of lifting attachment when the suit or appeal is pending. In fact, first part deals with a situation where case is pending and sufficient security is furnished otherwise. It is true that attachment before judgment continues even after the suit is decreed during the appellate stage even without a re-attachment and the attachment comes to an end automatically only under O.XXI, R.55 when suit is dismissed or decree is satisfied. That is a deeming provision. Otherwise, attachment can be lifted as per the provisions of O. XXXVIII, R.9. In the above circumstances, we hold that power under O. XXXVIII, R.9 of the Civil Court will not come to an end merely because suit is decreed. It can be exercised when sufficient security is furnished as provided under the above rule when appeal or execution proceedings are pending and O. XXI, R.55 puts no restriction on the power of the court under O.XXXVIII, R.9. 4. Next question to be considered is after the decree of the suit whether trial court has jurisdiction to entertain an application under O. XXXVIII, R.9. We are of the opinion that once the suit is disposed of all petitions filed in the suit prior to the passing of the decree either merges with the decree or stands closed and no case is pending before the trial court and the trial court is powerless except under the directions of the appellate court. Since no case or lis is pending before the trial court, defendant cannot be permitted to move the trial court an interim application for lifting the attachment under O. XXXVIII, R.9 in spite of the fact that attachment before judgment passed by the Trial Court is kept alive during the period of appeal also in view of O.XXXVIII, R.11. Since no case or lis is pending before the trial court, defendant cannot be permitted to move the trial court an interim application for lifting the attachment under O. XXXVIII, R.9 in spite of the fact that attachment before judgment passed by the Trial Court is kept alive during the period of appeal also in view of O.XXXVIII, R.11. We are of the opinion that after passing of the judgment and decree application can be filed only before the appellate court for lifting of the attachment when appeal is pending. S.107 (2) CPC provides that appellate court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code of Civil Procedure on Courts of original jurisdiction in respect of suits instituted. We are of the opinion that after the suit is decreed, if sufficient security is furnished at the appellate stage, it is for the appellate court powers under O. XXXVIII, R.9 or direct the trial court to lift the attachment after verifying the adequacy of security effected. In this case, the trial court rightly rejected the interim application for lifting the attachment as no case is pending before it. After disposal of the suit, trial court becomes functus officio. The matter is now pending appeal. In fact, stay of execution of the decree was ordered pending appeal on furnishing security and the matter is before consideration of the Appellate Court. At that time, it is for the parties to approach the appellate court to lift the attachment under O.XXXVIII, R.9 if sufficient security is furnished. Without a direction from the Appellate Court, the trial court has no say in the matter. Hence, we are of the opinion that when the suit is decreed and appeal is pending, power under O.XXXVIII, R.9 cannot be exercised by the trial court without direction from the Appellate Court and Appellate Court can exercise power under O. XXXVIII, R.9. 5. As held by the Apex Court in Padam Sen & Anr. v. State of U.P. ( AIR 1961 SC 218 at page 220) the object of O. XXXVIII, R.9 for judgment is to prevent any attempt on the part of the defendant to defeat the realisation of decree that may be passed against him. 5. As held by the Apex Court in Padam Sen & Anr. v. State of U.P. ( AIR 1961 SC 218 at page 220) the object of O. XXXVIII, R.9 for judgment is to prevent any attempt on the part of the defendant to defeat the realisation of decree that may be passed against him. An order of attachment before judgment is a sort of guarantee or security against decree becoming infructuous for want of property available from which plaintiff can satisfy the decree as held in Sardar Govindrao Mahadik & Anr. v. Devi Sahai & Ors. ( AIR 1982 SC 989 ) . When sufficient security is produced to the satisfaction of the court to cover up the entire amount claimed in the plaint or decree amount with court, attachment can be lifted as double security is not intended by the legislature. In fact, O.XXXVIII, R.9 provides for such a contingency. While interpreting a rule of procedure, subject and object of the rule should be considered without violating the wordings in the rule. O.XXI, R.55, in no way, curtails the power of the appellate court to lift the attachment by order under O.XXXVIII, R.9 when decree passed is stayed by the Appellate Court. Therefore, petitions under O.XXXVIII, R.9 can be filed for lifting the attachment if sufficient security is furnished during the pendency of the suit before the trial court and after decreeing the suit and pending appeal before the Appellate Court. However, the court should be satisfied that while lifting the attachment under the above rule, sufficient security is furnished covering the entire decree amount including interest and cost. In this case, execution was stayed by the appellate court on production of sufficient security for the decreed amount to the satisfaction of the Trial Court. The above I.A. is also placed before us. In the above I.A. filed in the appeal, on the facts and circumstances of the case by using the power under O,XXXVIII, R.9, we direct the Trial Court to verify whether sufficient security is furnished by the defendant to the satisfaction of the court below covering the entire decreed amount and if so attachment shall be lifted. W.P.C.No.11721 of 2006 is disposed of answering the reference. R.F.A. to be listed in the appropriate court in the ordinary course for hearing.