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2009 DIGILAW 462 (AP)

Mulla Ahmed Ali Baig v. Mulla Jaibunnisa Begum

2009-07-17

L.NARASIMHA REDDY

body2009
Judgment : Respondents 1 to 5 filed O.S.No.53 of 2000 in the court of II Additional District Judge, Kadapa at Proddatur against the petitioner and respondents 6 to 13 for the relief of partition and separate possession of the suit schedule property. 2. That suit was tried along with O.S.No.13 of 2002. A preliminary decree was passed determining the shares of the respective parties in different schedules of properties. During the pendency of the suit, they filed I.A.No.753 of 2002 in O.S.No.53 of 2000 under Order 39 Rules 1 and 2 CPC to restrain the petitioner from alienating the suit schedule property and an order of temporary injunction was passed. 3. After passing the preliminary decree, the respondents 1 to 5 filed I.A.No.377 of 2009 under Order 38 Rule 5 CPC seeking attachment of items C and E of the suit schedule properties. The petitioner opposed the application stating that it is not maintainable. The trial court passed an order dated 21.3.2009 directing attachment of the properties. The same is challenged in this C.R.P. 4. Heard the learned counsel for the petitioner and the learned counsel for the respondents. 5. The application under Order 38 Rule 5 CPC is filed to secure attachment of items of properties, owned by the defendant, with a view to ensure that the decree, that may be passed in the suit, would not become futile. The plaintiff has to satisfy the court that defendant is likely to remove the items from the jurisdiction of the trial court, or is proposing to alienate them. An order of attachment before judgment would remain in force, till the decree is executed, in case the suit is decreed. On the other hand, if the suit is dismissed, the attachment would stand terminated. From the very nomenclature of Order XXXVIII CPC, it is evident that whole exercise under that, has to be undertaken during the pendency of the suit, and before the judgment. Seeking attachment under Order XXXVIII CPC after the decree is passed, is unknown to law. C.P.C. provides for a different mechanism, for attachment of properties after the judgment. 6. The suits in which the preliminary decrees are passed stand slightly, on different footing, in this regard. Though a preliminary decree would entail in the judgment in a suit, it is only when a final decree is passed, that the suit comes to be disposed of. C.P.C. provides for a different mechanism, for attachment of properties after the judgment. 6. The suits in which the preliminary decrees are passed stand slightly, on different footing, in this regard. Though a preliminary decree would entail in the judgment in a suit, it is only when a final decree is passed, that the suit comes to be disposed of. Suit for partition, mortgage etc fall into that category. 7. Filing of applications under Order 38 Rule 5 CPC in the suits that lead to passing of final decree itself is rare and uncommon. Slight possibility for such applications exists only in cases of mortgage decrees, that too where it emerges that the mortgaged property is found to be inadequate to meet the liability to determine under the preliminary decree. In such an event, the application under Order XXXVIII Rule 5 CPC can be made, for the purpose of seeking attachment of the properties of the defendant, other than the one which is under mortgage. 8. The possibility to file such an application does not exist in case of a partition suit. The reason is that, if the objection is to prevent any of the co-sharers from alienating or transferring an item of the suit schedule property, resort can certainly had to Order XXXIX Rule 1 and 2 CPC. In the event of final decree being passed, the parties have to ensure that each of them resume the possession of respective shares allotted to them. There would not be any necessity to seek attachment of the properties, which are directed to be divided among the parties, whether before, or after judgment. The properties which are not subject matter of partition cannot be attached because they are not within the purview of the preliminary decree in a suit for partition. Either way, the order passed by the trial court cannot be sustained in law. 9. The C.R.P. is accordingly allowed and the order passed by the trial court in I.A.No.377 of 2009 is set-aside. There shall be no order as to costs.