M EMELDA JOTHI Vs. M PRABHAKARAN

JUDGEMENT

(1.) THESE Civil Revision Petition are filed against the order dated 22.12.2008 in IA.No.517 and 516/2007 in OS.No.40/2004 passed by the learned Subordinate Judge, Padmanabhapuram, holding that since the suit is restored to file, the order of attachment passed before the dismissal of the suit would automatically get revived and for proper adjudication, the wife of the petitioner/proposed 2nd defendant is a necessary party to be impleaded in order to find out as to whether the transfer effected in the interregnum period of dismissal and restoration of the suit was fraudulent or not.

(2.) THE undisputed facts are that the respondents/Plaintiffs filed the suit for recovery of money against the petitioner and pending the suit, in IA.No.110/204, an order of attachment of the suit property was effected by order dated 12.4.2004 under Order 38 Rule 5 of CPC. THE suit was dismissed for default on 16.3.2005 and the respondents filed an application on 12.4.2005 in IA.No.303/2007 for restoration of the suit and the suit was restored by order dated 30.12.2007. In the mean while, the petitioner sold the property under attachment to his wife on 5.4.2005 under a registered sale deed and based on that, a divorce deed was executed between them.

(3.) THE learned counsel for the petitioners would place reliance on the decision of the Honourable Supreme Court rendered in the case of Vareed Jacob Vs. Sosamma Geevarghese and Others [2004-SAR-Civil-553], wherein the majority of the Bench consisting of two honourable Judges held that restoration of the suit would result in automatic revival of interlocutory orders, unless circumstances occurring during interregnum period or orders passed by the court speak to the contrary. However, the Honourable Mr. Justice S.B. Sinha dissented from the said opinion and held that the interim order will not revive on restoration of suit and if the court intends to revive such interlocutory orders, an express order to that effect should be passed. THE dissenting Judge posed a question that when the property sold after the suit is dismissed for default and before the same is restored, is it possible to take a view that upon restoration of suit, the sale of property under attachment before judgment becomes invalid? and His Lordships' answer to the said question is in the negative and observed that by taking recourse to the interpretation of the provisions of the statute, the court cannot say that although such a sale shall be valid, but the order of attachment shall revive and such a conclusion by reason of a Judge-made law may be an illogical one.