ORDER
1. This Court by a common order dated 20-3-1998 had disposed of Civil Revision Petition Nos.4007, 4008, 4009, 4010 and 4484 of 1997. Against the said order, the present review petitions have been filed.
2. The petitioner in the aforesaid CRPs, had filed suits against the respondents herein for recovery of certain amounts. The petitioner in the aforesaid CRPs, hereinafter referred to as the “plaintiff and the respondents herein referred to as the “defendants”. The suits filed by the plaintiff were decreed. Then the plaintiff filed execution proceedings in the Court of the Principal District Munsif, Warangal for recovery of the amounts due under different decrees by attaching whole properties of the judgment-debtors under Order 21 Rule 43 CPC. The Executing Court dismissed all the Execution Petitions i.e., E.P. No.173 of 1995-in OS No.685 of 1984, E.P. No. 170 of 1995 in OS No.682 of 1984, E.P. No. 171 of 1995 in OS No.683 of 1984, E.P. No. 169 of 1995 in OS No.681 of 1984 and E.P. No. 172 of 1995 in OS No.684 of 1984 on the ground that the respondents have been already declared as insolvents and in the insolvency proceedings, the Receiver was appointed and he had taken possession of all the properties of the defendant-judgment-debtors and he is likely to make equal distribution of the assels of the defendants to different creditors as per the provisions of Insolvency Act. The defendants who had declared as insolvents in IP No.10 of 1984 and E.P. No.11 of 1984 and as such the plaintiff cannot execute the decree independently. The said view was upheld by this Court and all the revisions against the order passed in the execution proceedings as mentioned to above were disposed of. It is also be noted that when the plaintiff filed the suit against the defendants, he had secured the order of attachment before judgment. Now the aforesaid review petitions have been filed by the plaintiff to review the earlier order.
3. The learned Counsel Mr. S. Ashok Anand Kumar appearing on behalf of the plaintiff submitted at the Bar that it may be a fact that the defendants, were declared as insolvents, but the plaintiff secured a decree against the defendants, which is a secured
debt, and therefore it can be executed against the insolvents.
4. The learned Counsel for the review petitioner i.e., the plaintiff in all the suits, invited my attention to Section 2(e) of the Provincial Insolvency Act, which reads as under :
“Secured Creditor means a person holding a mortgage, charge or Hen on the property of the debtor or any part thereof as a security for a debt due to him from the debtor;”
My attention was also invited to Section 28(6) of the Provincial Insolvency Act, which reads as under :
“28(6): Nothing in this Section shall effect the power of any secured creditor to realise or otherwise deal with his security, in the same manner as he would have been entitled to realise or deal with it if this Section had not been passed.”
5. Considering the above provisions of law, this Court is of the considered view that the plaintiff is entitled to execute the decrees against the defendants as he was a secured creditor as defined in Section 2(e) read with Section 28(6) of the Provincial Insolvency Act.
6. While arguing the aforesaid Civil Revision Petitions, the above legal provisions were not brought to the notice of the Court by the learned Counsel for the revision petitioner.
7. The order obtained by the plaintiff attaching the properties of the defendants under Order 38 Rule 5 CPC, continues to exist even passing of the decree. The aforesaid view gets a support in a ruling reported in Smt. Pushpmala Jain Bank of Baroda and others, . In para (6) of the said judgment, their Lordships were pleased to hold as under :
“6. Order XXXVIII Rule 11 of the Code provides that where property is under attachment before judgment and a decree is subsequently passed in favour of the plaintiff, it shall not be necessary upon an application for execution of such decree to apply for a re-attachment of the property. A bare reading of this provision leads to its reasonable construction to the effect that the moment the decree is passed in favour of plaintiff, the attachment before judgment shall operate as attachment in execution of the decree and it shall be operative as such from the date of the decree and not before it. In my view, therefore, the prescribed period of limitation for filing application under Section 47 of the Code the petitioner started on 5-1-1983 when the decree was passed. The objections of the petitioner were, therefore, well within time.”
Similar view was expressed by the Apex Court of the country in a ruling reported in Sardar Govindrao Mahadik and another v. Devi Sahai and others, . It was held by their Lordships in para 58 of the judgment as under :
“58. What is the effect of attachment before judgment ? Attachment before judgment is levied where the Court on an application of the plaintiff is satisfied that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. The sole object behind the order levying attachment-before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of guarantee against decree becoming infructuons for want of property available from which the plaintiff can satisfy the decree. The provision in Section 64 of the Civil PC provides that where an attachment has been made, any private
transfer or delivery of the property attached or of any interest therein and any payment to the judgment debtor of any debt, dividend or other monies contrary to such attachment, shall be void as against all claims enforceable under the attachment. What is claimed enforceable is the claim for which the decree is made. Motilal’s suit was for a money claim. It finally ended in a decree for Rs.500/- by High Court and in between the 1st appellate Court had dismissed Motilal’s suit in entirety. There is nothing to show that the attachment which would come to an end on the suit being dismissed would get revived if a second appeal is filed which ultimately succeeds. In fact, a dismissal of the suit may terminate the attachment and the same would not be revived even if the suit is restored and this becomes manifestly clear from the newly added provision in sub-rule (2) of Rule 11-A of Order 38 CPC which provides that attachment before judgment in a suit which is dismissed for default shall not be revived merely because 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. As a corollary it would appear that if attachment before judgment is obtained in a suit which ends in a decree but if in appeal the decree is set aside the attachment of necessity must fail. There should be no difficulty in reaching this conclusion.”
8. Considering the above provisions of law, this Court is of the considered view that these arc the fit cases wherein the reviews can be ordered. It is accordingly ordered and the order passed in the aforesaid CRPs, are recalled and the E.P. No.169 of 1995 in OS No.681 of 1984; E.P. No. 170 of 1995 in OS No.682 of 1984 ; E.P. No. 171 of 1995 in OS No.683 of 1984; E.P. No.172 of 1995 in OS No.684 of 1984 and E.P. No. 173 of 1995 in OS No.685 of 1984 stand restored to the file of the Principal District Munsif,
Warangal. The learned District Munsif is directed to proceed with the execution proceedings in accordance with law. The executing Court to consider the objections, if any, raised by the Judgment-debtor under the Insolvency Act.
9. With these directions, the review petitions are allowed. No costs.