Saji Koduvath, Advocate, Kottayam.
Is it Mandatory to Lift the Attachment (before judgment) on Dismissal of the Suit?
- Yes (Order 38, Rule 9 directs so);
- hence the attachment will not be (automatically) restored.
Interlocutory Applications Get Revived on Restoration of Suit
In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority found that on restoration of the suit dismissed for default all interlocutory matters shall stand restored, unless the order of dismissal to show to the contrary, and unless the order of restoration says otherwise. The Apex Court considered the following decisions:
- .(i) Saranatha Ayyangar v. Muthiah Moopanar, AIR 1934 Mad 49
- (ii) Bankim Chandra v. Chandi Prasad reported in AIR 1956 Pat 271.
- (iii) Shivaraya v. Sharnappa reported in AIR 1968 Mysore 283.
- (iv) Abdul Hamid v. Karim Bux, AIR 1973 All 67.
- (v) Nandipati Rami Reddi v. Nandipati Padma Reddy, AIR 1978 AP 30.
Dismissal of the Suit in Default, Attachment before Judgment Automatically Ceases
It is pointed out in Vareed Jacob v. Sosamma Geevarghese –
- Order 38, Rule 9 directs that the Court shall order withdrawal of attachment when the suit is dismissed.
- Therefore, Rule 9 makes it mandatory for the Court to lift the attachment at the time of the dismissal of the suit.
- Such a provision is not there under Order 39 or under Order 40.
It is Mandatory to Lift the Attachment on Dismissal of the Suit
In Vareed Jacob v. Sosamma Geevarghese, (2004) 6 SCC 378, the majority relied on the following decisions also:
(i) Raj Chandra Gupta v. Ramesh Kishore reported in AIR 1965 All 546. Relying on Ram Chand v. Pitam Mal, (1888) ILR 10 All. 506, it was held that on the dismissal of the suit either on merit or for default attachment before judgment shall cease and it shall not revive automatically on restoration of the suit.
(ii) Nancy John Lyndon v. Prabhati Lal Chowdhury reported in 1987 (4) SCC 78, it has been held that in view of Order 21, Rule 57, C. P. C. it is clear that with the dismissal of the title execution suit for default, the attachment levied earlier ceased. However, it has been further held that when the dismissal was set aside and the suit was restored, the effect of restoring the suit was to restore the position prevalent till the dismissal of the suit or before dismissal of the title execution suit. It was further pointed out that the scheme under Order 21, Rule 57 was similar to Order 38, Rule 11 and Rule 11-A, C P C and therefore, it cannot be applied to all interlocutory orders on the same basis.
