AIR 1952 TRAVANCORE-COCHIN 534

Travancore-cochin High Court

Hon'ble Judge(s): Vithayathil , J

Civil P.C. (5 of 1908) , O.38 R.5, O.34 R.6— Cochin Civil P.C. (29 of 1111) , O.34 R.3— Mortgage suit - Attachment before judgment - Attachment before judgment of property other than mortgaged property not barred. The provisions of Order 38, Rule 5 are not inapplicable to mortgage suits. Where the mortgage property is insufficient to discharge the mortgage debt, other properties of the defendant can be attached before judgment if the requirements of Order 38, Rule 5 are satisfied. AIR 1943 Bom 24, AIR 1931 Bom 329, AIR 1933 All 191, AIR 1932 Cal 790, AIR 1929 Lah 402, AIR 1925 Pat 291(1), AIR 1936 All 408, Rel. on.(Para 2) There is nothing in Order 34, Rule 3 of the Cochin Civil Procedure Code prohibiting the Court from attaching before judgment properties belonging to the mortgagor other than the mortgage property. 31 Cochin 452 Disting.(Para 2) An attachment before judgment has not the same effect as an attachment in execution, although it is not necessary to re-attach the property in execution when it has been attached before judgment. 38 Cal 448 and 4 Beng. LR 63, Rel. on.(Para 3) Anno : C.P.C., O. 38, R. 5, N. 3. .....