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Report No. 54

Order 38, rule 11 A (New)

38.15. With respect to attachment before judgment (Order 38, rule 9), reference had been made in the earlier Report1 to the controversy on a certain point. An Allahabad case2 shows that the controversy still continues.

1. 27th Report.

2. Raj Chander v. Ramesh Kishore, AIR 1965 All 546.

38.16. In the Allahabad case, the appellants filed a suit in 1947, and obtained an order of attachment before judgment in respect of the property of the judgment debtor. The property was attached. The Munsiff appointed the respondent as "superddar" (Custodian) of the property. In the security bond executed by the respondent, he made himself liable for any loss of the property entrusted to him. First, the suit was dismissed for default of the plaintiff; but later it was restored. The defendant went in appeal, and the case was remanded for disposal on the merits, and ultimately the plaintiff obtained a decree. The decree-holder then moved an application for execution of the decree by arrest of the surety respondent, relying on the attachment before judgement and the connected bond.

38.17. The main object to this application for execution was that the order of attachment before judgment had come to an end with the dismissal of the suit, and the respondent's liability had also ceased with it. Negativing this contention, the High Court held that-

"A plain reading of (Order 38, rule 9) goes to indicate that if and when the suit is dismissed, the court is under an obligation to make an order withdrawing the attachment. In other words, the order of attachment before judgment made by the court would fall with the dismissal of the suit. If the court either inadvertently or through carelessness omits to pass an order withdrawing the attachment and thereby fails to perform a duty imposed upon it, could it be said that the attachment shall subsist even though there is no suit in existence? No discretion is allowed to the court to permit the attachment to continue even after the dismissal of the suit. It, therefore, follows that the mandatory provisions of rule 9 will not be affected by reason of the court having failed to comply with the provisions of the law."

38.18. It was also further held, that there was no distinction between the dismissal of suit for default and a dismissal of suit on merits.

"If the plaintiff succeeds in getting the suit restored in one case and the dismissal of suit is set aside an appeal in the other, all that happens is that the suit becomes alive. It cannot be disputed that once a suit is dismissed either for default or on merits, it ceases to exist in the eye of the law, and any ancillary orders passed in the suit would automatically come to an end and cease to operate."

38.19. In the instant case, it was, therefore, held that the 'superdar' could not, after the, attachment proceedings had become ineffective by reason of the dismissal of the suit for default, be held liable under the security bond executed by him.

38.20. In this connection, reference may be made to the earlier Report1 portions dealing with Order 21, rule 57, and the proposed new Order 38, rule 11A. Order 21, rule 57 provides that where property has been attached in execution of a decree, but, because of the decree-holder's default, the court is unable to proceed further with the execution application then, it can dismiss the application, in which case "the attachment will cease". There was a conflict of view son the question whether this rule applied to attachment before judgment. As a solution, the Law Commission had suggested that a general rule applying the provisions of the Code (relating to attachment made in execution) to attachments before a judgment- should be inserted.

1. 27th Report.

38.21. The proposed new rule was as follows:-

"Order 38, rule 11A: They provisions of this Code applicable to an attachment made in execution of a decree shall, as far as may be, apply to an attachment made before judgment which continues after judgment by virtue of the provisions of rule 11."

38.22. The judgment of the Allahabad High Court on Order 38, rule 9 is in conformity with the general principle recommended by the Law Commission (in its earlier report). The order of attachment made before judgment by the court would also fall with the dismissal of the suit.

Recommendation

38.23. The earlier recommendation should be carried out. It will not, however, solve the special difficulty created by the peculiar facts that were found in the Allahabad case, and it may, therefore, be worthwhile to provide also that the restoration of a suit does not revive the attachment made before dismissal. Accordingly, the following rule should be added as Order 38, rule 11A-

"11A (1) The provisions of this Code applicable to an attachment made in execution of a decree shall, as far as may be, apply to an attachment made before judgment which continues after the judgment by virtue of the provisions of rule 11.

(2) An attachment made before judgment, in a suit which is dismissed for default, shall not revive merely be reason of the restoration of the suit."



The Code of Civil Procedure, 1908 Back




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