( 1 ) THE interesting question involved in this civil revision petition is, as to whether the decree-holder, who obtained an order of attachment before judgment under order 38, Rule 5 of the Code of Civil procedure and subsequently got the suit decreed in his favour is a secured creditor, as contemplated under Section 28 (6) of the provincial Insolvency Act, 1920 (for short the Act ).

( 2 ) THE petitioner is the judgment-debtor and the respondent is the decree-holder.

( 3 ) FOR the sake of convenience, the petitioner and the respondent will be referred to as the "judgment-debtor and the decree- holder " respectively.

( 4 ) THE facts that lead to the present controversy and which are not in dispute are as under:

( 5 ) THE respondent filed the suit for recovery of money and obtained an order of attachment of properties of the petitioner before judgment under Order 38, Rule 5 of code of Civil Procedure. Eventually, the suit was decreed in his favour and an execution petition had also been filed in the year 2002. During the pendency of the execution proceedings, it was brought to the notice of the Executing Court that the judgment-debtor had already filed I. P. No. 17 of 2003 wherein the decree holder was figured as Respondent No. 1. Notice seems to have been served on the decree-holder also. At that stage, the decree-holder had filed an application under Order 21, Rule 6 of the Code of Civil Procedure seeking to sell the properties mentioned in the Execution petition schedule. At that stage, in fact, it was brought to the notice of the Executing court by the judgment-debtor that the properties sought to be sold by the decree-holder were already the subject-matter of i. P. No. 17 of 2003 and the said Insolvency petition has to be adjudicated and the properties were already kept in the custody of the Receiver. Therefore, it was contended inter alia by the judgment-debtor that the properties mentioned in the Execution petition schedule, which were under attachment by virtue of the orders passed by the decreeing Court under Order 38, rule 5 of Code of Civil Procedure, cannot be put to sale. The Court below relying on the judgment reported in Sardar Govindrao mahadik and another v. Devi Sahai and others, AIR 1982 SC 989 and in Vasavi and Company v. Nampally Padma and others, 1999 (2) ALD 309 = 1999 AIHC 3023 = 1999 (2) ALT 305, held that filing of insolvency Petition and pendency of the same was not a bar to proceed with the execution Petition. Hence, the present civil revision petition.

( 6 ) IN this connection, it is contended by the learned Counsel appearing for the judgment-debtor that as per the established law, particularly even according to the judgment rendered by the Supreme Court in sardar Govindrao Mahadik and another v. Devi Sahai and others (supra), the property under attachment in the suit, by virtue of the operation of Order 38, Rule 5 of Code of Civil Procedure, cannot be put to sale inasmuch as the same property had already been kept under the custody of the receiver by the Court adjudicating the insolvency Petition filed by the judgment-debtor.

( 7 ) AT the outset, and, in the present context, it is relevant to have a glance at section 55 of the Code of Civil Procedure, which deals with arrest and detention. Sub-rule (3) of Section 55, which is relevant is, as under:"where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the court shall inform him that he may apply to be declared an insolvent, and that he (may be discharged) if he has not committed any act of bad faith regarding the subject of the application and if he complies with the provisions of the law of insolvency for the time being in force. "

( 8 ) FROM the above, it could be seen that the judgment-debtor has the right of information from the Court that he may apply to be declared as an insolvent.

( 9 ) FURTHER, from a plain reading of sub-rule (3) of Section 55 of C. P. C. , it