Pavayammal and Another vs Muthusamy Gounder and Another

Sathasivam, J.—The claimants in E.A. No. 164/82 in E.P. No. 451/81 in O.S. No. 1497/69 on the file of District Munsif Court, Bhavani are the appellants in the above appeal. The facts leading to the filing of the present appeal are briefly stated hereunder:- The 1st respondent herein filed the above said suit against the 2nd respondent. Pending disposal of the suit, in I.A. No. 2910/69 the 1st respondent obtained an order of attachment on 6.10.1971. Ultimately, the above said suit has been dismissed on 29.11.1972. The 1st appellant herein after dismissal of the suit, purchased item No. 1 of the suit property under Ex.A1 sale deed on 20.10.1972. The 2nd appellant purchased item Nos. 2 and 3 under Ex.A3 on 1.11.1972. The above mentioned two transactions under Ex.A1 and A3 were after dismissal of the suit. While such is the position, the 1st respondent whose suit has been dismissed, filed an appeal and the Appellate Court decreed the suit as prayed for. In pursuance of the appellate decree, the 1st respondent filed the said E.P. for realisation of the decree on the strength of attachment obtained by him pending disposal of the suit. Inasmuch as the appellants herein purchased suit items 1 to 3 after dismissal of the suit, in order to avert any order being passed in the Execution Petition they filed a Claim Petition in E.A. 164/82 before the District Munsif, Bhavani. They also claimed that they are in possession of the properties. On the other hand, the respondents herein filed counter-affidavit contending that in view of the decree in appeal, the attachment effected during the pendency of the suit continues even after dismissal of the suit, hence, the sale effected by the appellants under Ex.A1 and A3, is not valid and not binding. Hence, they prayed for dismissal of the claim petition filed by the appellants herein.

The 1st claimant was examined as P.W.1, and the 2nd Claimant was examined as P.W.2. They also examined two more witnesses viz., Muthu Gounder and Athiartna Gounder as P.W.3 and 4. The Claimants have also marked Ex.A1 to P9 in support of their plea. On the other hand, the 1st respondent alone was examined as R.W.1 and they have not marked any document in support of their defence.

The learned District Munsif, Bhavani on the basis of the oral and documentary evidence, relying on the decision of this Court rendered in 1984 M.L.J. 148 and after holding that after dismissal of the suit, the attachment granted pending suit could not endure, allowed the claim in so far as 1st item of the property and in other respects, dismissed the same.

Aggrieved by the order of the learned District Munsif, Bhavani, the 1st respondent decree holder filed appeal in A.S. 17/87 before the Sub Court, Gobichettipalayam. The learned Subordinate Judge, after holding that in view of the decree obtained in the appeal which, is also a continuation of the proceedings even after dismissal of the suit, the attachment order continues; hence, the purchase by the appellants herein cannot be sustained since the same has been done during the subsistence of the order of attachment. In this view of the matter, the learned Subordinate Judge allowed the appeal, and dismissed the claim petition in toto.

Aggrieved by the decree of the lower Appellate Court, the claimants have filed the present appeal before this Court.

At the time of admission, the following substantial question of law is framed for consideration by this Court:

Whether the lower Appellate Court is right in holding that even after the dismissal of the suit on trial the order of attachment before judgment made during the pendency of the suit will continue and any sale of the attached property after the disposal of the suit can only be subject to the attachment?

I have heard the arguments of Mr. A.K. Kumaraswamy, learned Counsel for the appellants and Mr. T. Murugamanickam, learned counsel for the respondents.

The only point to be decided in this appeal is whether the attachment order granted during the pendency of the suit subsists, even after the dismissal of the main suit?

Before going into the above said issue, I may point out that we need not labour into the other issue viz., whether Order 38 Rule 5 has been complied with before the grant of an order of attachment, since the said condition under sub-clause (iv) of Rule 5, Order 38 came into force only by the Amendment Act of 104/76. In this case, the attachment order was made on 6.10.1971 i.e. prior to the Amendment Act, hence, whether the attachment order was in accordance with Order 38, Rule 5 as per Sub-Clause (iv) of the said Rule is only (iv) academic.

Now I consider the main issue viz., even after the dismissal of the suit, whether the attachment granted pending suit subsists or not? In this case, admittedly an order of attachment was made with regard to item Nos. 1 to 3 in I.A. 2910/69 on 6.10.1971. Ultimately, the main suit has been dismissed on 29.4.1972, and there is no specific order with regard to dismissal of the attachment order (dismissal of I.A. 2910/69) after dismissal of the suit that 1st appellant purchased item No. 1 under Ex.A1 sale deed on 20.10.1972 (i.e. after the dismissal of the suit). In this appeal we are concerned with only item No. 1, hence, I am not discussing the other items Nos. 2 and 3. After the said sale, the respondents herein filed appeal and ultimately, the lower Appellate Court granted decree in favour of the plaintiffs (respondents herein). In view of the attachment order obtained pending suit, and subsequent decree in the appeal, the lower Appellate Court came to the conclusion that in spite of dismissal of the suit in view of the decree of the lower Appellate Court, the attachment order continues even after dismissal. In this view, the learned Subordinate Judge came to the conclusion that the sale by the appellants herein is subject to the order of attachment obtained pending suit. In those circumstances, Execution Petition filed by the 1st respondent herein, in realisation of the decree against the Item No. 1 of the property is perfectly in order. The conclusion reached by the lower Appellate Court cannot be sustained in view of the decision of Full Bench of our High Court reported in AIR 1930 Madras 514 = 31 L.W. 643 Balaraju v. Masilamani. The Full Bench after considering earlier case laws came to the conclusion that "Upon the dismissal of a suit, the attachment before Judgment necessarily ceases under Order 38, Rule 9 even though the Court did not pass an order withdrawing it". In view of the decision referred to above, which is directly on the point, the conclusion reached by the lower Appellate Court is erroneous and the same is liable to be set aside. As a matter of fact, the learned counsel appearing for the respondents is not in a position to dispute the above said legal position. Under these circumstances, the judgment and decree of the lower Appellate Court made in A.S. No. 17/69 is set aside the judgment and decree made in E.A. No. 164 of 1982 in E.P. No. 51/81 by the learned District Munsif, Bhavani is restored. C.M.S.A. No. 49/88 is allowed, However, there, will be no order as to costs.