CRP/4563/2015 of A Markendeya Sharma Vs P Palavelli on 31 December 2015

ORDER:

CIVIL REVISION PETITION NO.4563 OF 2015

The order under revision is the order passed by the SpecialSessions Judge for the Trial of SC & ST Cases (Prevention of Atrocities)Act-cum-Additional District & Sessions Judge, Visakhapatnam in I.A.No.1073 of 2014 in O.S. No.699 of 2014 dated 01.05.2015. The defendantin O.S. No.699 of 2014 is the petitioner herein. The respondent-plaintifffiled I.A. No.1073 of 2014 in O.S. No.699 of 2014, under Order 38 Rule 5CPC, seeking attachment of the petition schedule property pendingdisposal of the suit.

It is the case of the respondent herein that the petitioner was due asum of Rs.10,64,533/-; a pronote was executed by him on 03.06.2012 forRs.8,00,000/-; inspite of oral and written demands, he did not choose torepay the amount; he was due amounts to several creditors; with a view todefraud them, including the petitioner, he was trying to alienate the petitionschedule property in favour of third parties, and was planning to leave thejurisdiction of the Court; except for this property, he had no other property;and, in case the petitioner-plaintiff were to succeed, he cannot realise theamount even if, ultimately, a decree is passed in his favour.

In the order under revision, the Court below noted that a counterwas filed denying the plaint averments and execution of the suitpromissory note; it was contended that the suit promissory note was a rankforgery; and it was also denied that any attempt was made to alienate theschedule property with a view to defraud creditors.

In the order under revision, the Court below observed that therevision petitioner herein did not deny owning the petition schedule land;the respondent-plaintiff had filed two 3[rd] party affidavits of DokalaGowrinaidu and Boddakayala Chinnaidu in support of his contention thatthe revision petitioner was trying to alienate the petition schedule land, and was planning to leave the jurisdiction of the Court; they had also statedthat, except the petition schedule land, he had no other properties; therevision petitioner did not give details of the properties, if any, other thanthe schedule lands; a prima facie case was made out that there was adebt, and of his attempts and trials to alienate the schedule property toothers; and it was the specific case of the respondent-plaintiff that therevision petitioner was making trials to alienate the property to defeat theirclaim, and delay execution of the decree. The Court below was satisfied,on the basis of the material on record, that, in case the revision petitionersucceeded in his attempts to dispose of the petition schedule property, therespondent-plaintiff would face great hardship. The petition was allowed,and the petition schedule property was attached.

Sri Sriman, Learned Counsel for the petitioner, would submit thatthe satisfaction which the Court is required to arrive at, before orderingattachment before judgment under Order 38 Rule 5 CPC, must be basedon the material on record which should disclose sufficient details toestablish that the property, sought to be attached, was being alienatedeither in whole or in part, or that the defendant was about to remove thewhole or any part of the property from the local limits of the jurisdiction ofthe Court. He would rely on Sripathi Panditarajula Venkanna Babu v.

Varalakshmi Finance Corporation, Rajahmundry[[1]].

While examining the scope of Order 38 Rule 5 CPC, the Divisionbench of this Court, in Sripathi Panditarajula Venkanna Babu[1],observed:

“…………..An order of attachment before judgment affects the right of theowner of the property to deal with the same even before any verdict is availableagainst him as regards the claim of the plaintiff. Such an order is not to be passedmerely for the asking or in the routine manner. There must be cogent, prima faciematerials to lead the Court to the conclusion that there have been attempts by thedefendant to dispose of the property with a view to defeat the decree. Meresatisfaction that there has been an attempt to dispose of the property is in itself notsufficient and there must be further conclusion, again prima facie, that the attempt toalienate is to delay or defeat the decree. For reaching such satisfaction, there has tobe before the Court some tangible material than the mere statement without givingany particulars and without disclosing the source of the information of attemptedalienation. The learned Subordinate Judge should have been alert to the fact that therewas actually no third party affidavit as the second affidavit was only of the Clerk of therespondent-firm who was under its control as an employee. The affidavits in themselvesdo not disclose as to when an attempt was made to alienate, what type of alienation was intended to be made and to whom the alienation was being desired to be madeand who gave such information…………… (emphasis supplied).

It is evident, from the aforesaid judgment, that an order ofattachment before judgment is not to be passed for the mere asking; andthe affidavits, if any filed in support of the plea that the defendant wasseeking to alienate his property, must contain sufficient particulars as towhen an attempt was made to alienate; the mode of alienation; to whomalienation was desired to be made; and as to who gave such information. Neither the affidavit filed in support of the I.A, nor the 3[rd] party affidavitsfiled by the respondent-plaintiff, contain any such details. All that is stated,in the 3[rd] party affidavits, is that the revision petitioner was trying toalienate the landed property, and was planning to leave the jurisdiction ofthis Court. The basis on which the 3[rd] parties were of the view that thedefendant was seeking to alienate the landed property is not disclosed intheir affidavits. The Court below has also failed to take into considerationthe specific averment in the counter-affidavit that the persons, who sworeto the 3[rd] party affidavits, were relatives of the plaintiff and would dance tohis tunes.

The submission of Sri G.V.S. Kishore Kumar, Learned Counsel forthe respondent-plaintiff, that, even if the 3[rd] party affidavits are presumed tohave been given by the petitioner’s relatives, it would not justify ignoringsuch 3[rd] party affidavits, has considerable force. What is disconcerting,however, is that the 3[rd] party affidavits, on which the Court below placedreliance on, is bald and vague, and does not contain any detailswhatsoever as to how these 3[rd] parties came to know that the revisionpetitioner was trying to alienate the said landed property, and to whom. The material placed on record by the plaintiff, for seeking attachmentbefore judgment, does not satisfy the requirements of Order 38 Rule 5CPC.

The order under revision must be and is, accordingly, set aside. The Civil Revision Petition is allowed. However, in the circumstances, without costs.

Date: 31.12.2015.MRKR

[1]1996(4) ALD 453 (D.B)

______________________________

RAMESH RANGANATHAN, J