CRP/4784/2014 of Kalyanapu Ramulu Vs Sanapathi Papi Naidu on 31 December 2020

ORDER:-

This Civil Revision Petition is filed under Article 227 of the Constitution of India challenging the order dated 06.08.2014 passed in I.A.No.960 of 2014 in O.S.No.481 of 2014 by learned Senior Civil Judge, Vizianagram wherein the petition schedule property belonging to the petitioner was attached before Judgment.

2. The petitioner before this Court is the defendant in the suit.

3. The facts of the case in brief are:

The respondent herein has filed O.S.No.481 of 2014 on the file of the Senior Civil Judge, Vizianagaram for recovery of money by pleading that the petitioner herein failed to discharge his debt having borrowed an amount of Rs.82,000/- from the respondent by agreeing to repay the same with interest at 24% per annum. Along with the said suit the respondent has also filed I.A.No.960 of 2014 seeking attachment before judgment, of the schedule property mentioned therein. By order impugned the Court below passed an order of attachment of immovable property before judgment. Aggrieved by the same the petitioner is before this Court.

4. Heard Sri K.Manik Prabhu, learned counsel for the petitioner and learned counsel for the respondent.

5. Learned counsel for the petitioner submits that no notice was issued to the petitioner calling upon him to furnish security to fulfill any decree that may be passed against him. However, even if it is assumed that the said notice was served on the petitioner the Court ought to have seen that the suit amount was only Rs.82,000/- in respect of which the petitioner has to furnish security and whereas the property which is attached values more than the said amount.

6. Learned counsel for the respondent submits that the suit was filed on 31.07.2014 and summons were issued to the petitioner on the same day. The Court below has passed the order impugned on 06.08.2014.

7. A perusal of the affidavit filed in support of the petition shows that the petitioner borrowed an amount of Rs.82,000/- from the plaintiff on 01.08.2011 agreeing to pay the same with 24% per annum and executed promissory note on the same day. The affidavit further reveals that the respondent/defendant propagated openly in the village that he is intentionally delaying the suit promissory note amount and that he is planning to escape from the jurisdiction of the Court by alienating the schedule property nominally in favour of third parties and further he also stated before the scribe and attestors of the suit promissory note about his intention to dispose of whole or any part of the property from the jurisdiction as such the respondent herein filed the petition under Order XXXVIII Rule 5 C.P.C. with a prayer to direct the petitioner herein to offer sufficient security for the suit amount. As the petitioner failed to produce the security the Court below had passed the order of attachment.

8. At this juncture it is appropriate to extract Order XXXVIII

Rule 5 which reads thus:

“Where defendant may be called upon to furnish security for production of property. – (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,- (a)is about to dispose of the whole or any part of his property, or (b)is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.”

9. In Raman Tech. & Process Engg. Co. & … vs. Solanki Traders[1] the Hon’ble Supreme Court has observed that the power under Order XXXVIII Rule 5 is a drastic and extraordinary power and that power should not be exercised mechanically or merely for asking. The Court should be satisfied about the existence of prima facie case for the plaintiff and the Court should also be satisfied that with a view to obstruct or delay the execution of any decree the defendant was about to dispose of whole or any part of his property.

10. The whole purport of Order XXXVIII Rule 5 is to protect the plaintiff against loss arising from making away his property pending suit. When an application is filed under Order XXXVIII Rule 5 the burden lies on the plaintiff to show that prima facie his claim is bona fide and valid.

11. It is clear from the order passed by the Court below that the trial Court even without examining the parameters to be satisfied before passing order under Order XXXVIII Rule 5 has passed the order of attachment and a reading of the order of the trial Court indicates that the Court failed to record reasons for passing order of attachment before judgment and the power is exercised lightly without there being compelling circumstances. Viewed from any angle the order under revision is contrary to Order XXXVIII Rule 5 of C.P.C. and the same is liable to be set aside.

12. In the result, the Civil Revision Petition is allowed setting aside the order dated 06.08.2014 passed in I.A.No.960 of 2014 in O.S.No.481 of 2014 by learned Senior Civil Judge, Vizianagram. There shall be no order as to costs.

As a sequel, pending miscellaneous petitions, if any, shall stand closed.

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THE HON’BLESMT JUSTICE LALITHA KANNEGANTI

(Allowed)

IKN

CIVIL REVISION PETITION No.4784 of 2014

Date: 31.12.2020