Once an order under R. 5 of O. 38, Civil P. C. is made final under R. 6 of Order 38, Civil P. C. an application to release the property from attachment for the purpose of privately selling it in order to discharge the debts of third parties is not permissible under O. 38, Civil P. C.

GOPAL RAO EKBOTE, J.

( 1 ) THIS is a revision petition directed against an order of the Subordinate Judge, Tenali passed in I. A. No. 668 of 1965 in O. S. No. 55 of 1962. It arises in the following circumstances.

( 2 ) THE petitioner before me filed a suit against the respondent for recovery of an amount of over Rs. 9,000 on the foot of a promissory note. He filed an application under Order 38, Rule 5, C. P. C. and the property was conditionally attached under sub-rule (3) of Rule 5. After-wards under Order 38, Rule 6, the order of attachment was made final. I am told that the suit has since been decreed.

( 3 ) DURING the pendency of the attachment and the suit, the respondent filed an application, I. A. No. 1362 of 1964, seeking permission of the Court to release from the attachment the first item of the property comprising of 1 acre and 13 cents of wet land in order to pay other pressing debts. This petition was ordered on 4-1-1965 permitting a private sale of the property for the purpose of discharging the debts other than the one for which the present suit was filed.

( 4 ) THIS petition, I. A. No. 668 of 1965, out of which the present revision petition arises, was then filed with a request that half of Item 2 comprising 7 acres of dry land should be released from attachment for the purpose of satisfying the debts other than the suit debt. This petition was resisted by the plaintiff on the ground that the attached property was not sufficient to pay the debts due to the plaintiff. The trial Court by its order under revision directed the release of half of the second item of the attached property for the purposes of discharging the mortgage debts of third parties. The Court was of the opinion that the property still left under attachment would be sufficient to satisfy the suit debt. It is this view that is now challenged in this revision petition.

( 5 ) I was taken through the petition filed by the 1st defendant as well as the order passed on that petition. I was also taken through the affidavit filed in this Court. After carefully going through these documents, I am satisfied that the lower court has not made even summary enquiry in order to find out whether the property, which would be left after the release of 3 acres and 50 cents of land, would be enough for the purpose of satisfying the suit debt. In the petition itself, it is contended that the property, which would be left under attachment, is in dispute. It is also admitted in the petition that it is also attached in several decrees. It is also seen from the record that it is under mortgage. The same case is with regard to the house which remains under attachment. It may be worth Rs. 40,000 according to the report of the Amin, but is under mortgage and attachment of several decrees. Apart from that, it is also clear from the record that the partition suit against the 2nd defendant is pending in which his sons have claimed a share in the properties. In these circumstances, and particularly when one item of property under attachment was already released, it was incumbent upon the lower court to at least institute a summary enquiry in order to find out whether the property, which would be left under attachment, is free from dispute, that out of it nothing would go to the share of the sons without holding them liable, and that the decrees in which this property is attached, could also be paid off apart from the plaintiff claim. It was also necessary to see as to what is the amount due under the mortgages. Without going into these questions, the lower Court has observed:"his statement that the house is worth Rs. 80,000 may be inaccurate but I am sure it is highly valuable. The remaining attached properties are subject to certain securities but I feel sure that they are sufficiently substantial and adequate to discharge the securities and the respondents decree debt too as and when the respondent obtains a decree in the suit. "this observation clearly indicates that there wa

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