JUDGMENT - S.G. MUTALIK, J.:---The present appplicant is the original defendant No.3 in Special Civil Suit No. 77 of 1988 and he challenged the impugned order passed by the learned Joint Civil Judge (Senior Division), Amravati, below Exhibit 12, rejecting the application filed by him for the attachment of the immovable property of non-applicant No.1 (original defendant No.1) before the judgment, under the provisions of Order 38, Rule 5, Civil Procedure Code.

2. The defendant No.1 is the principal debtor who obtained loan from the plaintiff-bank, for which the defendant Nos. 2 and 3 stood sureties. The defendant No.1 did not repay the amount of loan and, ultimately, the plaintiff-bank filed Special Civil Suit No. 77 of 1988 for the recovery of the amount of Rs. 2,53,820.75 from defendant No. 1. As defendant Nos. 2 and 3 stood sureties, they are also impleaded as necessary parties.

3. Before filing the Special Civil Suit, the plaintiff-Bank gave notices to defendants 1 to 3 and called upon to repay the amount of loan. After received the notice, the defendant No. 3 informed the plaintiff-Bank that the defendant No. 1 was trying to dispose of his immovable properties and that necessary steps should be taken by the Bank to protect the amount of loan advanced to him. However, the Bank did not take any steps. Even after filing of the Special Civil Suit No. 77 of 1988, the Bank did not pursue with the remedy under the provisions of Order 38, Rule 5, of the Code of Civil Procedure, for attaching the property of the defendant No. 1. Ultimately, the present applicant filed the application (Exhibit 12) and contended that defendant No. 1 was trying to dispose of his immovable properties and also the residential house which is mortgaged to the plaintiff-Bank for the loan incurred by him. The defendant No. 1, by his objections (Exhibit 17), opposed the application and contended that the defendant No. 3 has no locus standi to file the application. Such application can be filed by the person claiming decree in his favour and who apprehends that the defendant No. 1 is intending to dispose of the property in order to defeat his claim. He further denied that he was intending to dispose of his properties, as contended by the applicant-original defendant No. 3. The learned trial Judge, after considering the rival contentions and also the provisions of section 151 of the Code of Civil Procedure, rejected the application on 1-11-1988. The said impugned order is challenged in the present Civil Revision Application.

4. Though non-applicant Nos. 1 and 2 are served, they remained absent.

5. It is submitted by Shri B.M. Kasat, learned Counsel for the applicant, that under the provisions of Order 38, Rule 5, of the Code of Civil Procedure, it is nowhere laid down that it is the exclusive right of the plaintiff to attach the property of defendant No. 1 before judgment, or that other defendants, under these peculiar circumstances, are debarred from applying under the aforesaid provisions of Order 38, Rule 5 of the Code of Civil Procedure. The learned Counsel further submitted that even in case if a decree is passed against all the defendants and if the whole amount under the decree is recovered from only defendant No. 3 i.e., the present applicant, he would be in a position of the creditor and as such he has got every right to file the application under the provisions of Order 38, Rule 5 of the Code of Civil Procedure to protect his interest. The learned Counsel further submitted that in view of the provisions of section 140 of the Indian Contract Act, where a guaranteed debt has become due, or default of the principal debtor to perform a guaranteed duty has taken place, the surety upon payment or performance of all that he is liable for, is invested with all the rights which the creditor had against the principal debtor. In short, according to the learned Counsel, perhaps the present applicant would be in a position of a prospective creditor and even in that c

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