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1951 Supreme(Ker) 98

VITHAYATHIL
Ittaman Nayar – Appellant
Versus
Andi – Respondent


Judgment :-

1. The plaintiff in O.S. No. 377 of 1125 of the Wadakkancherri Munsiff's Court is the revision petitioner in this case. The suit is for mortgage money. The plaintiff applied for attachment before judgment of certain properties belonging to the defendant and the attachment was allowed. The 1st counter petitioner here put in a claim in respect of the properties attached before judgment. It was also contended by the claimant that the court had no jurisdiction to order the attachment before judgment. The reason given is that under 0.34 R.3 of the Cochin Civil Procedure Code the decree-holder in a mortgage suit can proceed personally against the judgment-debtor only after exhausting the remedies against the mortgage properties. It is therefore contended that only after such remedies are exhausted that execution can be taken against the person or other properties of the judgment debtor and that therefore the attachment before judgment in this case was illegal. Reliance was placed on the ruling of the Cochin High Court reported in 7 Cochin Q 425 (31 Cochin 452) Thavu v. Atchuthan Nair, in which it was held that the attachment of standing crops in execution of a mortgage decree






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