Mortgage & attachment before judgment

Querist : Anonymous (Querist) 28 August 2011 This query is : Resolved
Dear sir,

In the Original Suit filed which is for recovery of money given based on deposit of title deeds(Equitable mortgage) I had also asked for attachment before judgment(ABJ) of other properties of the debtor. But the Madras High court ruled that since the title deeds are deposited there is no need to pass ABJ under order 38 rule 5. But same Madras High court has ruled that mortgage will not stand in the way for ABJ. when 2 contraditory judgment of the same High court is there can I ask for the review of the order which I came to know after passing of my order and asking the judge to refer the matter to a larger bench as this is question of interpretion o f law. Or how should I proceed to get my ABJ along with the mortgage being intact?

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Kiran Kumar (Expert) 28 August 2011
such kind of matters are decided on facts available on record.

its not obligatory for a court to refer a matter to larger bench, if you believe that you have a good case then make search about the legal interpretation and get the matter to SC.

dont expect after the disposal the matter will be referred to larger bench...the dichotomy in legal interpretation should have been raised during the course of arguments in a proper form.

Guest (Expert) 28 August 2011
YES YOU CAN PROCEED. THE FACT MAY NOT BE NOTICED BY H.C. BRING IT TO THE NOTICE BY APPEAL OR REVIEW.

prabhakar singh (Expert) 28 August 2011
i share the opinion expressed by Expert : Kiran Kumar

R.Ramachandran (Expert) 28 August 2011
Dear Anonymous,
Can you paste the two citations which you are referring to.

Chanchal Nag Chowdhury (Expert) 28 August 2011
Such orders for ABJ is not only the discretion of the court but is also passed in the facts & circumstances of a particular case. U R advised to make out an addl. ground & try again.

Raj Kumar Makkad (Expert) 28 August 2011
I agree with Kiran and Chanchal.

girish shringi (Expert) 28 August 2011
I will go with Mr. Kiran kumar.

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