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Madras High Court
Seethai Ammal And Anr. vs K. Narayana Ayyangar on 28 March, 1928
Equivalent citations: AIR 1928 Mad 976, 113 Ind Cas 63
Author: M Nair


Madhavan Nair, J.

1. This is an application to revise the order of the Fall Bench of the Court of Small Causes, Madras, refusing to record satisfaction of the decree in S. C.S. No. 13949 of 1921 on its file. To appreciate the arguments before us it is necessary to state a few facts of the case.

2. A promissory note was executed by one Rangachari in favour of one Ranga Ayyangar. That was transferred by endorsement to one Narayana Ayyangar who obtained a decree on it in S. C.S. No. 13949 of 1921. In the District Munsif’s Court of Srivilliputtur one Seethai Ammal filed O.S. No. 776 of 1922 against Ranga Ayyangar as defendant 1, that is,, the endorser of the promissory note and Narayana Ayyangar, the endorsee, as defendant 2. This Narayana Ayyangar was the decree-holder in S. C.S. No. 13949 of 1921. It seems at an early stage of the suit, on 21st January 1923, Narayana Ayyangar, defendant 2, was exonerated as a party. Later on applications were made by Seethai Ammal for attachment of the decree of S. C.S. No. 13949 of 1921 before judgment, on the ground that Narayana Ayyangar, the decree-holder, was really a benamidar for Ranga, Ayyangar, defendant 1, in O.S. No. 776 of 1922. Orders were made attaching the decree and information was communicated to the Small Cause Court. These orders were ultimately made absolute. On 19th September 1923 the District Munsif of Srivalliputur pronounced judgment against defendant 1 in the case and as regards Narayani Ayyangar the suit was dismissed. He was exonerated and was directed to bear his own costs. The decree-holder in O.S. No. 776 of 1922, who is the petitioner before us, put in an application before the Registrar of the Small Cause Court saying that the decree of S. C. C.S. No. 13949 of 1921 attached by her was satisfied and so satisfaction may be recorded This was supported by an affidavit by the judgment-debtor in the Court of Small Causes. The Registrar recorded satisfaction. An application was made before the Full Bench of the Small Cause Court against; the order of the Registrar and that has been set aside by the Full Bench. It is that order that has been brought up in revision by the decree-holder in O.S. No. 776 of 1922 Seethai Ammal.

3. The learned Judge of the Court of Small Causes set aside the order of the Registrar on the ground that the attachment of the decree itself was invalid and was not according to law because they stated that, if Ranga Ayyangar, defendant 1 in O.S. No. 776 of 1922, himself applied for execution against Rangachari on the ground that Narayana Ayyangar was only a name-lender for him, that application could not be entertained and should be dismissed on the authority of the decision in Palaniappa Chettiar v. Subramania Chettiar A.I.R. 1925 Mad. 701. In our opinion the basis of the judgment of the Small Cause Court cannot stand, because the learned Judges of that Court had no jurisdiction to call in question the validity of the attachment at that stage, the applicant before them being the holder of an attached decree. Under the provisions of Order 21, Rule 53, Clause 3, she is the representative of the decree-holder and execution has to be allowed if she in law represents the decree-holder. It was not therefore competent for the learned Judges at that stage to consider the validity of the attachment; on this point their judgment cannot stand and ought to be set aside.

4. But the learned vakil for the respondent has tried to uphold the judgment on another ground which we think must prevail. When the application for re-cording satisfaction was made as a matter of fact there was no attachment in existence because the attachment had ceased by force of the provisions of Order 38, Rule 9, Civil P.C. We think that this argument should be accepted. That provision says that when an order is made for attachment before judgment, if the suit is dismissed the Court shall order the attachment to be withdrawn.

5. In this case the suit was dismissed against Narayana Ayyangar on 19th September 1923. It follows therefore that the attachment before judgment necessarily came to an end with the dismissal of the suit. There was no decree for the attaching decree-holder to execute. But it was argued on behalf of the petitioner that prior to the dismissal of the suit. Narayana Ayyangar was exonerated as a party and attachment was obtained before judgment and that therefore the provisions of Order 38, Rule 8 will not apply. We cannot accept this argument. The suit was dismissed on 19th September and therefore Order 38, Rule 9 at once became applicable. It was also argued that because an application was made for executing the decree by Narayana Ayyangar and an order was passed against him, he is now precluded from raising this argument. We think there is no substance in this objection. The Court should have taken note of the statutory provision according to which, on the day when it purported to take action, the attachment had ceased to exist: see Order 38, Rule 9. We therefore think that the lower Court’s order can be maintained on the ground on which it has-been put by the learned vakil for the respondent. In the result the petition is dismissed with costs.

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