The main legal point established in the judgment is that an attachment made before judgment without complying with the provisions of R.5(1) of Order XXXVIII CPC is void and not merely voidable, emphasizing the mandatory nature of the provisions and the implications for the validity of the attachment.

John Mathew, J.

The judgment-debtor in O.S.No.203 of 1986 on the file of the Subordinate Judge's Court, Ernakulam, is the appellant in the C.M.A. That was a suit for money, which was, decreed on 3-1-1989, underwhich the decree-holder who is the respondent in the C.M.A. was entitled to realise a sum of Rs.1,11,750/- together with interest from the judgment debtor. The appellant is hereinafter referred to as the judgment-debtor and the respondent as the decree-holder. The decree-holder filed E.P.No.523 of 1989 for realisation of the decree by the sale of an item of property belonging to the judgment-debtor. The property involved is a two storeyed building and two cents of property in which the building is situated, in Broadway, Ernakulam. That property was attached before judgment in the suit. In execution proceedings the decree-holder fixed the upset price of the property at Rs.1 lakh. According to the judgment-debtor, the property is worth more than Rs.10 lakhs. Among other objections the judgment-debtor raised such an objection also. The execution court directed that the price estimated by the judgment- debtor may also be shown in the sale proclamation. The decree-holder bid the property for a sum of Rs.1.5 lakhs. Subsequently the judgment-debtor filed execution application, E.A.No.587 of 1990, under Order XXI R.90 of the Code of Civil Procedure for setting aside the sale. The execution court dismissed the application. The judgment-debtor is challenging that order in C.M.A.

2. The decree-holder filed E.A.No.242 of 1991 before the executing court impleading the judgment-debtor as well as the appellants in E.F.A.No.10 of 1992 praying for delivery of property. The appellants in E.F.A.No.10 of 1992 are hereinafter referred to as the tenants. The tenants filed objection claiming that they are bona fide tenants of the building before the date of attachment. They also raised various other contentions about the validity of the attachment. However the execution court rejected those objections and ordered delivery. The tenants have filed E.F.A.No.10 of 1992 against the said order.

3. The C.M.A. is filed with a petition, C.M.P.No.2681 of 1992, to condone the delay in filing the appeal. In the affidavit in support of that petition it is stated that the order of the execution court which is under challenge in the C.M.A. was passed on 16-2-1991. An application for certified copy was filed on 21-2-1991. Stamp papers were called for on 1-1-3-1991. Stamp papers were produce on 14-3-1991. On 8-4-1991 the certified copy was notified to be ready. On the same day the copy was taken delivery. The judgment debtor had time till 22-5-1991 to file the appeal. However, the appeal was filed only on 26-3-1992. Thus there is a delay of 267 days in filing the appeal. At the time when the decree was passed and the property was sold in execution, the judgment-debtor's business had dwindled and he was under great financial

strain. He was unable to obtain even expert legal opinion as to whether he could take up the matter further. He was under great mental depression. There were other pressing financial obligations and other litigations. It was only after a little respite that he could get proper legal advice to the effect that there was a fair chance of the sale being set aside if an appeal is filed. According to the judgment debtor, the delay in filing the appeal was not due to any laches or negligence on his part. If the delay is not condoned, he will be put to irreparable injury, loss and damage.

4. The decree-holder filed a counter affidavit, controverting the averments in the affidavit of the judgment debtor. According to the counter affidavit the appeal and the delay petition were filed to pressurise her to come to a compromise with the tenants, who were inducted by the judgment-debtor after the attachment of the properties. According to the decree-holder the C.M.A. was filed at the instance of the tenants. The sale was conducted on 27-6-1990. S