Order passed by vacation Court held unsustainable.

This appeal is against the order passed by the vacation civil Judge, Kanyakumari at Nagercoil, dated 25. 1994 in I.A.No.292 of 1994 in O.S.No.188 of 1989 raising the attachment over items 1 and 4 of the suit schedule properties in O.S.No.188 of 1989.

2.The plaintiff in O.S.No.188 of 1989 who has filed the said suit for recovery of Rs.1,07,300, has filed an application in I.A.No.843 of 1989 seeking attachment before judgment of five items of suit properties. Conditional attachment was ordered directing the respondent to furnish security to the tune of Rs.1,25,000. Since the condition was not complied with, attachment was made absolute on 110. 1989 by the Subordinate Judge, Nagercoil. Subsequently the first defendant filed I.A.No.165 of 1994 on 4. 1994 praying to raise the attachment before judg-ment of the suit properties stating that there is a proposal for sale to Tamil Nadu Small Scale Industries Corporation and the vendee has agreed to deposit the money after the sale towards the suit claim. The respondent in the said application viz., the plaintiff has filed a counter and the application stood posted for enquiry on 7. 1994. In the meantime, during summer vacation on 15. 1994, the respondent filed a fresh application in I. A.No.292 of 1994 for raising attachment over item Nos.1 and 4 of the suit properties contending that the liability of the first defendant for the suit claim cannot be decided in the Interlocutory Application and since the plaintiff has filed the suit for recovery of Rs.1,07,300 the petitioner is seeking an order raising attachment over item Nos. 1 and 4 of the suit properties since there is a proposal to sell the abovesaid properties and if he is allowed to do so he will have to deposit the money immediately on receipt of sale consideration. On the above averments of the first defendant in this petition the vacation Judge has passed the impugned order raising the attachment in respect of items 1 and 4 of the suit properties and has also directed the petitioner to deposit Rs. 1,25,000 within 10 days of the sale.

3. Aggrieved over the same, the plaintiff has preferred this appeal.

4. The learned counsel appearing for the appellant would argue that towards the suit claim 5 items of the suit properties were attached initially and the said attachment was made absolute on account of the failure of the defendants to comply with the directions given by the Court to furnish security and that nearly five years later, the first defendant has filed a petition for raising the attachment over those properties on the ground that there is a proposal to sell the property to the Tamil Nadu Small Scale Industries Corporation and agrees to deposit the money in court after the sale is effected and when this application is pending enquiry, the first defendant has filed a second application before the vacation court seeking an order raising attachment over two items of the properties alone and the Vacation Judge has also passed the order raising attachment and it is against the provisions of 0.38, Rule 9 of Civil Procedure Code and therefore, the said order should be set aside.

5. O.38, Rule 9 of Civil Procedure Code provides for removal of attachment and it is as follows:

"When an order is made for attachment before judgment, the court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, or, when the suit is dismissed." None of the two conditions under which an attachment which has already been effected, have taken place for raising the attachment over items 1 and 4. The petitioner has only stated that after the sale of the properties, he would pay the amount. The vacation court has directed the defendant alone to deposit the amount within 10 days of the sale and it has not passed an order directing the vendee to deposit the proposed sale consideration in court towards the suit claim. If such an order has been passed