THE HON'BLE SRI JUSTICE K.G.SHANKAR CIVIL REVISION PETITION No.4474 of 2010 Date:18.11.2011 Between: Vemula Anamma and others. ..... Petitioners/defendants . AND Kavuri Padma and another. .....Respondents The Court made the following: THE HON'BLE SRI JUSTICE K.G.SHANKAR CIVIL REVISION PETITION No.4474 of 2010 ORDER: The petitioners are unfortunate defendants. A suit was laid in O.S.No.213 of 2008 on the file of the Principal Junior Civil Judge, Narsaraopet. An interlocutory application was filed therein in I.A.No.1260 of 2008 under Order 38 Rule 5 CPC for the attachment of the death-cum-retirement benefits of Koteswara Rao, who is the husband of the 1st petitioner and father of the remaining petitioners herein. Unfortunately, the trial Court passed prohibitory order on 14- 08-2008 without complying with Order 38 Rule 5 (4) CPC. Show cause notice was not issued to the Judgment- Debtor as to why the attachment of the amounts as sought for by the plaintiff should not be ordered. Impugning the same, the present revision is laid. 2. However, there is an intervening factor in this case. On 14- 08-2010, I.A.No.1260 of 2008 was allowed making the attachment absolute. On the same day, the suit was decreed ex parte. The question is whether this revision is maintainable where the suit was already decreed. 3. Sri T. Sricharan, learned counsel for the petitioners/defendants placed reliance upon M. SOMESWAR REDDY Vs. AJAY BHANU VANAMALI and KATARI RATNA RANI Vs. VELAGAPUDI RAMA RAO. In both the cases, it was held that attachment before judgments straightaway without complying with the provisions under Order 38 Rule 5 (4) Cr.P.C was held to be bad. At the same time, in both the cases, the suits were pending before the trial Court when the orders were passed by the High Court in the cases. In the present case, O.S.No.213 of 2008 was admittedly decreed. I am afraid that I cannot consider the maintainability of the orders in I.A.No.1260 of 2008 after the disposal of the suit as the proceedings in I.A.No.1260 of 2008 stood merged with the decree. 4 . The petitioners indeed may move an appeal from the judgment in O.S.No.213 of 2008. In such an event, certainly, the defendants would be at liberty to raise the plea that the attachment ordered in I.A.No.1260 of 2008 by the trial Court was incorrect and is liable to be set aside. So far as the present petition is concerned, where O.S.No.213 of 2008 was disposed of, this revision is not maintainable. 5. The learned counsel for the petitioners placed reliance upon S. GANGADHAR Vs. R. PRAKASH. That is a case in respect of a petition under Order 39 Rule 2A dealing with a typical instance of contempt by the respondents. This is not a case of similar nature. The present case is in respect of an order by the Court under Order 38 Rule 5 CPC without following the mandatory provision under Order 38 Rule 5 (4) CPC. Consequently, the decision of the Karnataka High Court has no application. 6 . I make it clear that the order passed by the trial Court in I.A.No.1260 of 2008 was not correct as he did not follow the mandatory provision under Order 38 Rule 5 CPC. However, no order consequently can be passed by me where the suit in which I.A.No.1260 of 2008 arose was already decreed. This petition is accordingly dismissed as not maintainable and not on merits. No costs. 7 . The learned counsel for the revision petitioners submitted that the appeal is pending. The petitioners certainly are at liberty to move a petition for redressal in respect of the orders in I.A.No.1260 of 2008 before the appellate Court, raising the same as one of the grounds in the appeal. _________________________ JUSTICE K.G. SHANKAR Date:18.11.2011. mrb