Ramachandra Rao, J. - (1.) The plaintiff-decreeholder is the appellant in this Letters Patent Appeal. The facts leading upto the case are shortly as follows :- The appellant filed a suit, O.S. No. 35 of 1952 in the Subordinate Judge's Court Ongole, against the first respondent for recovery of certain amount due on a promissory note. Along with the plaint, he filed I.A. No. 433 of 1952 for attachment before judgment of certain moveable (gogulu) and immoveable properties of the judgment-debtor. The first respondent appeared by counsel and it was represented that meanwhile 'gogulu' sought to be attached, were alienated to respondents 2 and 3. On 10th April, 1952 the appellant filed another petition I.A. 452 of 1952 for attachment of ' gogulu ' said to have been stored in the field of respondents 2 and 3 under Order 21, rule 46, and attachment was ordered on 12th April, 1952.
(2.) The prohibitory order was served on respondents 2 and 3 prohibiting them from delivering the 'gogulu' to any person whatsoever. On 18th April, 1952, respondents 2 and 3 filed an application I.A. 487 of 1952 praying for an amendment of the prohibitory order served on them by prohibiting them only from delivering the property to the judgment-debtor. This application was allowed on the same day. On 18th April, 1952, respondents 2 and 3 also filed a claim petition, I.A. 489 of 1952 to raise the attachment of' gogulu ' under Order 38, rule 8, Civil Procedure Code. Along with this petition, they also filed in Court a security bond for Rs. 4,000 towards the value of' gogulu ' undertaking to pay the same to the appellant in case it was found by the Court that the ' gogulu ' belonged to the first respondent. In para. 6 of the affidavit filed in support of the claim petition, they stated : "They are advised to furnish security to the value of the property that is attached if ultimately the Court holds that the property attached belonged to the 2nd Respondent on the date of attachment." This claim petition was ultimately dismissed on 19th June, 1952 as the same was. not pressed. It may also however be noted that no suit under Order 21, rule 63, to establish the right of the respondents 2 and 3 to the said ' gogulu ' was filed. Respondents 2 and 3 not having filed any counter to the application for attach- ment viz., I-A. 452 of 1952, the said attachment was made absolute on 26th June, 1952.
(3.) In the meanwhile, a Commissioner was also appointed to inspect and report as to the place where the ' gogulu ' were stored and whether they were removed from the possession of the judgment-debtor subsequent to the filing of the suit. The Commissioner filed a report on 10th April, 1952 stating that the ' gogulu ' had been so removed.;