The High Court dismissed a civil revision petition challenging an attachment order passed under Order 38 Rule 5 CPC. The Court held the trial Court followed proper procedure since the defendant failed to furnish security despite a fresh opportunity.
Civil Revision Petition dismissed; connected Miscellaneous Petition closed; no costs.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 02.07.2014
CORAM :
THE HONOURABLE MS.JUSTICE R.MALA
C.R.P(PD).No.2166 of 2014 and M.P.No.1 of 2014
K.S.Thirunavukarasu .. Petitioner
Vs.
K.N.Velusamy .. Respondent
Prayer :- Civil Revision Petition is filed under Article 227 of Constitution of India, against the fair and decreetal order dated 07.03.2014 made in I.A.No.654 of 2013 in O.S.No.431 of 2013 on the file of the Principal SubCourt, Erode.
For Petitioner : Mr.M.Guruprasad
O R D E R
The Civil Revision Petition is filed against the fair and decreetal order dated 07.03.2014 made in I.A.No.654 of 2013 in O.S.No.431 of 2013 on the file of the Principal Sub-Court, Erode.
2.At the time of admission, argument of the learned counsel for the revision petitioner is heard in length.
3.The respondent herein as a plaintiff filed a suit for recovery of
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money due on promissory note. Before filing suit, he issued pre-suit notice. At the time of filing suit, the plaintiff has also filed an application in I.A.No.654 of 2013 under Order 38 Rule 5 of C.P.C. directing the respondent to furnish sufficient security to satisfy the suit claim of Rs.1,23,599/- future interest and costs of the suit and in default order attachment of the property before judgment. The defendant filed his counter resisting the same. The trial Court, after considering the same, directed the defendant to furnish a security for a sum of Rs.1,24,000/- on or before 17.03.2014, failing which, the petition mentioned property shall be attached before judgment. Since the defendant has not furnished security as per the direction of the trial Court, attachment has been ordered, against which, the present revision petition is preferred by the defendant/revision petitioner.
4.Learned counsel for the petitioner submitted that the order of attachment passed by the trial Court is illegal, since the defendant has no intention to alienate the suit property. Hence, he prayed for allowing of the revision petition. To substantiate his arguments, he relied upon the following decisions:
(i) (2008) 2 SCC 302 (Raman Tech. & Process Engg. Co. and another v. Solanki Traders);
(ii) 2014 (3) CTC 792 (M.Padmini v. M.Anandhan);
5.Considered the submissions made by the learned counsel for
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the revision petitioner and perused the typed set of papers.
6.The respondent herein as a plaintiff filed a suit for recovery of money due on promissory note. The suit claim is Rs.1,23,599/-. Before filing suit, the plaintiff issued pre-suit notice on 29.08.2013 and that has been received by the revision petitioner/defendant, for which, acknowledgment card is also filed. At the time of filing suit, the plaintiff has also filed an application in I.A.No.654 of 2013 under Order 38 Rule 5 of C.P.C. After notice has been issued, the defendant filed his counter. The trial Court, after hearing both sides, has passed the following order:
“10.In the end, the respondent is directed to furnish a security for a sum of Rs.1,24,000/- on or before 17.3.2014 failing which the petition mentioned property shall be attached before judgment there after call on 24.3.14 for further proceedings.”
But in pursuance of the above said order, security has not been furnished by the defendant, hence, attachment has been ordered.
7.At this juncture, it is appropriate to consider the following decisions relied upon by the learned counsel for the revision petitioner:
(i) In (2008) 2 SCC 302 (Raman Tech. & Process Engg. Co.
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and another v. Solanki Traders) , wherein it was held that the object of Order 38 Rule 5 of C.P.C., in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff. Para-5 is extracted hereunder:
“5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.“
In the above citation, it was held that the defendant is doing his business in the premises and his machineries have been attached before judgment. But in the case on hand, the trial Court, after following the procedure under Order 38 Rule 5 of C.P.C., directed the defendant to furnish security and since the defendant failed to furnish security, attachment has been ordered.
(ii) In 2014 (3) CTC 792 (M.Padmini v. M.Anandhan),
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wherein it was held that power under Order 38 Rule 5 of C.P.C., is drastic and extraordinary. Because to prevent the defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff either by attempting to dispose of or remove his movables from the jurisdiction of the Court. In the case on hand, the trial Court has, after following procedure under Order 38 Rule 5 of C.P.C., directed the defendant to furnish security that too after giving fair opportunity to the defendant to file his counter and hear his arguments. Since the defendant failed to furnish security as per the direction of the trial Court, attachment has been ordered.
8.Considering the aforestated circumstances, the defendant instead of furnishing security, filed the present application challenging the order passed by the trial Court, it shows that the defendant/revision petitioner with a malafide intention to defeat the plaintiff's claim, has filed the present revision. Under such circumstances, I am of the considered opinion, the trial Court has followed the procedure under Order 38 Rule 5 of C.P.C., ordered attachment of property. So I do not find any merits in the revision petition. Therefore, the revision petition is dismissed as devoid of merits.
9.In the result, the Civil Revision Petition is dismissed. No costs.
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Consequently, connected Miscellaneous Petition is closed.
02.07.2014
Internet:yes To
The Principal Sub-Court, Erode.
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R.MALA,J.
kj
C.R.P(PD).No.2166 of 2014 and M.P.No.1 of 2014
02.07.2014
2 issues framed by the court
Whether the trial Court erred in ordering attachment of property under Order 38 Rule 5 CPC for failure to furnish security.
Whether the High Court should interfere with the trial Court's order of attachment in a suit for recovery of money due on promissory note.
Colour shows how this judgement treated each authority
Raman Tech. & Process Engg. Co. and another v. Solanki TradersReferred¶30
(2008) 2 SCC 302 (Raman Tech. & Process Engg. Co. and another v. Solanki Traders) · Who else cites this
M.Padmini v. M.AnandhanReferred¶33
2014 (3) CTC 792 (M.Padmini v. M.Anandhan)
2 provisions across 2 enactments
K.S.Thirunavukarasu
K.N.Velusamy
R.MALA
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
