( 1 ) THIS revision petition is filed by the plaintiff being aggrieved by the Order and decree dated 17-3-1999 in I. A. No. 372 of 1998 in O. S. No. 85 of 1998 on the file of the principal Junior Civil Judge, Nandikotkur. By the impugned order and decree, the court below dismissed the I. A. of the plaintiff for attachment before judgment.

( 2 ) THE Court below observed that the defendant is a Carpenter and an agriculturist and the house in question is the only residential house, and the same is not liable for attachment and sale under section 60 (1) (c) of C. P. C. The Court below relied upon a judgment of this court reported in "c. Ramaiah vs. Guravaiah".

( 3 ) HEARD the learned Counsel of both sides. The Counsel appearing for the petitioner-plaintiff strenuously contended that the Court below has erred in applying the principles of Section 60 (1) (c) C. P. C. to an application now filed by the petitioner plaintiff for attachment before judgment under Order 38 Rule 1 and 5 C. P. C.

( 4 ) HE submits that Section 60 of the Code of Civil Procedure does not apply to the application filed for attachment before judgment under Order 38, C. P. C. Therefore, the impugned order is liable to be set-aside.

( 5 ) ON the other hand, the learned Counsel appearing for the respondent defendant contended that the principles found in Section 60 of C. P. C. are equally applicable to the order of attachment before judgment contemplated under Order 38 rule 1 and 5 C. P. C. He relied upon a judgment of this Court reported in v. Balakrishtaiah vs. M. Venkata Chalam".

( 6 ) HE further submitted that this benefit conferred by Section 60 (1) (c) can not be waived even if the defendant so chooses by any agreement. He relied upon a judgment of this Court reported in "duggirala balarama Krishnayya vs. Arokapudi jagannadha Rao". He further submits that section 60 (1) (A) also incorporates the same principles. Accordingly, he submitted that, absolutely there are no merits in this revision petition.

( 7 ) IN order to appreciate the rival contentions, I have to note a few facts of this case. As per the evidence of D. Ws. 1 and 2 and P. W. 2, it is revealed that the present defendant is a Carpenter and is doing carpentry work for the Ryths of the village, besides making carts, ploughs etc. and he is residing in the house, which is sought to be attached. Apprehending that the defendant is making an attempt to sell all the property, the plaintiff filed the present I. A. No. 372 of 1998 under Order 38 Rule 1 and 5 C. P. C. for attachment before judgment.

( 8 ) ON the basis of these undisputed facts, the learned Counsel for both sides, sought to makeout their respective contentions. Therefore, the short point for my consideration would be; Whether the benefits conferred under Section 60 (1) proviso (c) would apply to an order of attachment under Order 38 Rule 5 CPC.

( 9 ) THERE is no indication under Sec. 60, as to whether the benefits conferred by proviso to Section 60 (1) would apply to the proceedings under Order 38 Rule 5 CPC.

( 10 ) THE learned Counsel for the petitioner-plaintiff strenuously contended that Section 60 would apply only after the decree is passed, and such attachment in pursuance of the decree u/s. 60 (1) C. P. C, would be for the purpose of attachment and sale, whereas in the instant case, an attachment before judgment is sought, and if the defendant agrees to furnish security, even there may not be attachment before judgment. Thus he contended that the benefits conferred by the proviso to section 60 (1) (c) CPC would not apply to order 38 Rule 5 C. P. C.

( 11 ) FROM a reading of Order 38, Rule 7 C. P. C. , I find that even for the attachment before judgment, the attachment shall be made in the manner provided for the attachment of the property in execution of a decree. Even Rule 8 of Order 38 also is on the same lines. I think it is appropriate to extract both the Rules 7 and 8 of Order 38, as under: rule 7: "save as otherwis