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Gopaldas Hiralal Marwadi v. Mahadu Dagdu Patil
Factual and Procedural Background
The plaintiff filed an appeal against an order rejecting his application for attachment of certain property belonging to his judgment-debtor. The defendant, an agriculturist, had mortgaged some property to the plaintiff, resulting in a consent decree dated 22nd November 1938. The decree required payment of the decretal amount in yearly instalments of Rs. 600 starting 15th January 1940. Failure to pay any instalment allowed the plaintiff to apply under section 15-B of the Dekkhan Agriculturists' Relief Act to realise the instalment, and failure to pay two instalments enabled the plaintiff to realise the entire amount by sale of the mortgaged property. Any deficit was to be recovered from certain defendants and joint family property.
The plaintiff sought to attach other, unmortgaged property of the judgment-debtor on 30th June 1939, alleging a risk of deficit after sale of mortgaged property and attempts by the defendant to dispose of other assets. The application was made under Order 38, Rule 5 of the CPC, which governs attachment before judgment. The trial judge rejected the application as not maintainable, reasoning that the mortgage decree had already been passed, terminating the suit, and thus no attachment before judgment application could be entertained. The judge also found the application premature as it was contingent on a deficit occurring after sale of the mortgaged property. The plaintiff's reliance on the Court’s inherent jurisdiction under section 151 CPC was also rejected.
Legal Issues Presented
- Whether an application for attachment before judgment under Order 38, Rule 5 CPC is maintainable after a consent decree has been passed in a mortgage suit governed by section 15-B of the Dekkhan Agriculturists' Relief Act.
- Whether the Court has inherent jurisdiction under section 151 CPC to grant attachment of unmortgaged property after decree in such a case.
- Whether the order rejecting the application for attachment before judgment is appealable under Order 43, Rule 1(q) CPC.
Arguments of the Parties
Appellant's Arguments
- The plaintiff argued that the application was made while the suit was pending despite the consent decree, as under Order 34, Rule 5 CPC, any application made after a preliminary decree is still part of the suit and not execution.
- It was contended that under Order 38, Rule 5 CPC, attachment before judgment can be applied for at any stage of the suit, including after the preliminary decree and before a personal decree is passed.
- Cases were cited supporting the proposition that attachment before judgment of unmortgaged property is permissible before a final or personal decree is passed.
- The appellant challenged the trial judge’s view that the application was premature and not maintainable after the decree.
Respondent's Arguments
- The respondent raised a preliminary objection that the order rejecting the attachment application was not appealable under the relevant provisions of the CPC.
- It was argued that Order 38, Rule 6 CPC only allows appeal against orders directing attachment, not orders dismissing attachment applications.
- The respondent maintained that since the decree under section 15-B of the Dekkhan Agriculturists' Relief Act had been passed, the suit was terminated and the application for attachment before judgment was not maintainable.
- The contention that the Court has inherent jurisdiction under section 151 CPC to grant attachment post-decree was rejected by the trial judge and implicitly upheld by the appellate court.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| (1932) 30 A.L.J 2281 and 14 Pat. 12 | Appealability of orders withdrawing interim attachment under Order 38, Rule 6 CPC. | Used to reject the preliminary objection and hold the order rejecting the attachment application was appealable as it amounted to withdrawing an interim attachment. |
| 55 ALL. 1793, 58 ALL. 8844 and 46 Cal. 245 | Application for attachment before judgment permissible after preliminary mortgage decree. | Supported the appellant’s contention that attachment before judgment can be applied for at any stage of the suit including after preliminary decree. |
| 33 Bom. L.R 5146 | Attachment before judgment of unmortgaged property before preliminary decree. | Confirmed that attachment before judgment is permissible before preliminary decree. |
| 18 Bom. L.R 4757, 25 Bom. L.R 12148, 46 Bom. 7619 and 32 Bom. L.R 109310 | Mortgage decrees under section 15-B of the Dekkhan Agriculturists’ Relief Act need not be made final. | Applied to hold the decree in this case was final and suit terminated, thus no attachment before judgment application was maintainable. |
| 31 Bom. 12011 and 38 Bom. L.R 56212 | Execution proceedings and instalments under section 15-B of the Dekkhan Agriculturists' Relief Act. | Distinguished from the present facts; these cases did not decide on the necessity of final decree under section 15-B. |
| 19 Bom. 31813 and 9 Bom. L.R 102614 | Meaning of "in the course of any proceedings under a decree" in section 15-B. | Held that after decree, suit is terminated and further steps are execution proceedings by the executing Court. |
Court's Reasoning and Analysis
The Court first addressed the preliminary objection on appealability and held that the order rejecting the attachment application was appealable. This was because an interim attachment order had been made and the rejection amounted to withdrawing that attachment, falling under sub-rule (2) of Order 38, Rule 6 CPC.
On the merits, the Court analyzed whether the plaintiff’s application for attachment before judgment was maintainable after the consent decree. It noted that the decree was governed by section 15-B of the Dekkhan Agriculturists' Relief Act, which differs from an ordinary mortgage decree under Order 34, Rule 5 CPC. Unlike ordinary mortgage decrees, a final decree is not required under section 15-B, and the decree passed was a composite decree covering payment, sale of mortgaged property, and personal remedy for deficit.
The Court relied on precedents establishing that after such a decree, the suit is terminated and further proceedings are execution proceedings. Therefore, an application for attachment before judgment under Order 38, Rule 5 CPC, which applies only during the suit, was not maintainable post-decree. Instead, attachment and sale of property after decree would be governed by execution provisions, specifically section 51 CPC.
The Court rejected the contention that the Court’s inherent jurisdiction under section 151 CPC could be invoked to grant such attachment post-decree, holding that the absence of express provision in the Code precluded such power.
Consequently, the Court affirmed the lower Court’s order rejecting the attachment application as premature and not maintainable.
Holding and Implications
DISMISSED – The appeal is dismissed, confirming that an application for attachment before judgment under Order 38, Rule 5 CPC is not maintainable after a consent decree governed by section 15-B of the Dekkhan Agriculturists' Relief Act has been passed. The suit is considered terminated upon such decree, and subsequent applications must be treated as execution proceedings.
The decision directly affects the parties by upholding the trial Court’s rejection of the attachment application. No broader precedent altering the law was established beyond affirming existing principles regarding mortgage decrees under section 15-B and the procedural stage at which attachment before judgment can be sought.
Divatia, J.:— This is an appeal by the plaintiff against an order rejecting his application for attachment of certain property belonging to his judgment-debtor. The defendant, who is an agriculturist, had mortgaged some of his property to the plaintiff and a consent decree was taken by the parties on 22nd November, 1938. The decree directed that the decretal amount was to be paid by instalments of Rs. 600 per year and the first instalment was to be paid on 15th January, 1940; on failure to pay any instalment the plaintiff was to apply to the Court under section 15-B of the Dekkhan Agriculturists' Relief Act, to realise the instalment and on failure to pay any two instalments the plaintiff was to realise the whole amount by sale of the mortgaged property; if there was any deficit, it was to be realised from defendants 1, 3 and 4 and from the joint family property of defendant 2. After the decree was taken the plaintiff made the present application on 30th June, 1939, by which he sought to attach certain property of the judgment-debtor other than the mortgaged property on the ground that there was likelihood of a deficit occurring after the sale of the mortgaged property, and as the defendant was trying to do away with his other property, it was necessary to protect the plaintiff's interest by attachment of that unmortgaged property of the judgment-debtor. The application appears to have been made under O. 38, R. 5, which applies to attachment before judgment. The-learned Judge rejected it as not maintainable on the ground that the mortgage-decree had already been passed and the suit having been therefore terminated, no application for attachment before judgment could be filed at that stage. He was also of the opinion that the application was premature as it cannot be filed unless it was found that there was a deficit after the sale of the mortgaged property. It was contended before him that the application was maintainable in any case under the inherent jurisdiction of the Court under section 151 of the cpc, but that contention was rejected on the ground that it did not follow that the Court had power to grant such attachment after the decree simply because there was no express provision in the Code to that effect.
2. The plaintiff has filed this appeal against that order. On behalf of the respondent, Mr. Gajendragadkar has taken a preliminary objection that the appeal does not lie because it is not covered by O. 43, R. 1(q) of the CPC, which provides for an appeal against an order under Rr. 2, 3 or 6 of O. 38. It is contended that the order rejecting the application for attachment before judgment does not fall under R. 6, because that rule speaks of an order of the Court directing certain property to be attached where the defendant failed to show cause on an application by the plaintiff, and that the rule does not apply to a case where the plaintiff's application for attachment before judgment has been dismissed. It is true that sub-r. (1) of R. 6 speaks of an order of the Court directing attachment of the property. Sub-rule (2), however, says that where the defendant shows cause against an application by the plaintiff or furnishes the required security and the property specified has been attached, the Court shall order the attachment to be withdrawn, or make such order as it thinks fit. This sub-rule would apply where on the application of the plaintiff an order for interim or conditional attachment has been made, and after hearing both sides the Court withdraws the attachment. The order of the Court, therefore, withdrawing the attachment after the defendant had shown cause would fall under sub-r. (2) and as such be appealable. That is the effect also of the authorities in (1932) 30 A.L.J 2281 and 14 Pat. 12. It is held in the latter case that there is no appeal where there was no conditional or interim order of attachment, but an appeal would lie where there is such an interim order. In the present case, it is clear that there was an order of interim attachment, the defendant showed cause against it, and the order of the learned Judge rejecting the plaintiff's application amounted, therefore, to an order withdrawing the attachment made at the instance of the plaintiff when the application was made. It is thus clear that the present order falls within sub-r. (2) of R. 6. The preliminary objection, therefore, fails.
3. On the merits, it is contended by Mr. Desai on behalf of the appellant that the plaintiff's application was made when the suit was pending even though the consent decree was taken by the parties. The argument is that in a mortgage suit any application made even after the preliminary decree was passed would be an application in the suit and not in execution by virtue of the provisions of O. 34, R. 5 of the CPC, and it would, therefore, be open to the plaintiff to apply for attachment under O. 38, R. 5, because under that rule it is open to a party to make an application for attachment at any stage of a suit. The argument goes further that even after the final decree is passed and liberty is reserved for applying for a personal decree under O. 34, R. 6, it would be open to the plaintiff to make such an application after the final decree and before the Court passes a personal decree, because that order is to be made by the Court which passed the original decree. This argument is no doubt supported by the decisions in 55 ALL. 1793, 58 ALL. 8844 and 46 Cal. 245;5 and it may be taken that it would be open to a plaintiff after the preliminary mortgage decree to apply for attachment before judgment in a proper case. Our Court has held that it is open to a party to apply for attachment before judgment of unmortgaged property before a preliminary decree is passed: see 33 Bom. L.R 5146.
4. The question is whether in the present case it is open to the plaintiff to apply for an order of attachment before judgment after the decree was passed. Now, it is material to note that the decree is not an ordinary mortgage decree falling under O. 34, R. 5, but it is a decree which is governed by the provisions of section 15-B of the Dekkhan Agriculturists' Relief Act, which in one material respect is different from an ordinary mortgage decree falling under O. 34. The difference is that while after an ordinary preliminary mortgage decree it is necessary to apply for a final decree, and thereafter further necessary to apply for a personal decree if there is a deficit, in the case of a mortgage decree under S. 15-B it is not necessary to apply for a final decree, and it has been held in a number of cases of our Court that such a decree is not required to be made final. Those decisions are 18 Bom. L.R 4757, 25 Bom. L.R 12148, 46 Bom. 7619 and 32 Bom. L.R 109310. Mr. Desai contends that there is a conflict between those decisions and a previous decision of this Court in 31 Bom. 12011, but we do not see any such conflict. The point in that case was as to whether it was open to the Court to grant instalments to an agriculturist in execution proceedings after the decree was passed against him, and it was held that it was so under section 15-B of the Dekkan Agriculturists' Relief Act. The point as to whether a preliminary decree under that section was required to be made final or not did not arise for decision in that case. Similarly the Full Bench decision in 38 Bom. L.R 56212, which follows the decision in 31 Bom. 120, is also not against the series of decisions mentioned above. In our opinion, it is established that in the case of a mortgage decree under section 15-B it is not necessary to apply for a final decree. The present decree is a composite decree inasmuch as it provides for the payment of the mortgage amount and sale of the mortgaged property in default of payment of instalments and it also directs personal remedy in case of deficit. It is clear, in our opinion, that after this decree, all further steps are to be taken in execution, If attachment of any property is prayed for after the decree, it would be governed by the provisions of s. 51 under which the executing Court can order attachment and sale of sale without attachment of any property an application for attachment only without sale which can be made before judgment under O. 38 cannot be made in execution. Moreover, it has been held in 19 Bom. 31813 as well as in 9 Bom. L.R 102614, that the words “in the course of any proceedings under a decree” in S. 15-B mean the Court which carries out the decree, i.e, the executing Court. It would, therefore, follow that once the Court passes a decree in a mortgage suit governed by the Dekkhan Agriculturists' Relief Act, the suit is terminated, and any application made thereafter is an application after the termination of the suit and must be deemed to have been made in the stage of execution.
5. It cannot be regarded as an application at any stage of the suit within the meaning of that expression in O. 38, R. 5 of the CPC. We think, therefore, that the learned Judge was right in holding that the application was not maintainable. The order of the lower Court is confirmed and the appeal is dismissed with coats.
6. Appeal dismissed.
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