M. Veluchamy Gounder and another vs K. Mani

Mohan, J.—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 accessory orders may be passed permitting the decree-holder to proceed against the revision petitioners-sureties. The said

suit was originally 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 export on 29th March, 1978. The movable properties of the judgment-debtor were attached before judgment rot on 30th

September, 1977, as evidenced by Exs.A.1 to A. 3 and A.7, since the defendant did not furnish security.

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 ordered 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.

The learned Subordinate Judge of Udumalpet 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 realization of the decree debt. It is under these circumstances, the

present revision has been preferred.

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 per mission to the decree-holder to proceed against the revision petitioners based on the terms of the

surety ship as evidenced by Exs.A.5 and A.6. The surety ship 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 realize the decree amount from persons, who were not the judgment-debtors. Nor is

there anything to suggest under Exs.A.5 and A.6 that the revision petitioners undertook to pity off the decree amount. As against this, the learned

counsel for the respondent would urge that notwithstanding the cessation of tie 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.

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 Ault 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. 10 to

produce and place at the disposal of the Court the property specified in the schedule hereunto annexed; Therefore. I have voluntarily become

safety 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 a(sic) to satisfy the

decree; and In default of his so total I find myself, my heirs, and executors to pay to the said Court, at Its order, the said sum of Rs. 10 such sum

not exceeding, the said sue, 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 movable 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.