Allowed

N.Gopalasamy S/O Late v. D.Gopalasamy

Madras HC3 Feb 2021CRP/245/2017

Case brief

AI extract

What is this about?

This revision petition challenged an order dismissing an application for attachment before judgement. The court observed the petitioner's affidavit alleged the respondent was alienating properties and deemed this sufficient grounds to order attachment subject to existing bank encumbrances, setting aside the lower order.

What did the court decide?

The impugned order dated 03.12.2016 setting aside attachment was set aside; the application for attachment before judgement along with bank encumbrances was allowed.

N.Gopalasamy S/O Late Vs D.Gopalasamy — Execution and Attachment | Madras HC (2021)

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CRP(NPD)No.245 of 2017

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IN THE HIGH COURT OF JUDICATURE AT MADRAS

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RESERVED ON : 22.12.2020

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CORAM:

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THE HONOURABLE MR.JUSTICE A.A.NAKKIRAN

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CRP(NPD)No.245 of 2017
CMP.Nos.1048 and 1049 of 2017
(Through Video Conferencing)
N.Gopalasamy, by its Power Agent K.Sabapathy Petitioner
Vs
D.Gopalasamy Respondent

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Prayer:- This Civil Revision Petition has been filed, under Section 227 of the Constitution of India, against the fair and final order dated, 03.12.2016, made in IA.No.631 of 2016, in OS.No.308 of 2016, by the III Additional District Sessions Court, Coimbatore.

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ORDER

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This Civil Revision Petition has been filed, against the fair and final order dated, 03.12.2016, made in IA.No.631 of 2016, in OS.No.308 of 2016, by the III Additional District Sessions Court, Coimbatore.

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The facts of the case are that the Plaintiff is the Petitioner and the Defendant is the Respondent. The suit was filed for recovery of money with interest. In the suit, the Plaintiff has filed the present IA, seeking for a direction, calling

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CRP(NPD)No.245 of 2017

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upon the Defendant to furnish security to the value of the suit claim, failing which to pass an order of attachment of the property more fully described in the Schedule, before judgement. By the impugned order, the said application was dismissed and hence, this Civil Revision Petition has been filed.

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The learned counsel for the Petitioner has submitted that the Respondent is attempting to alienate his properties and if he succeeds in his attempts, the Petitioner will not be able to realise the fruits of the decree and hence, the present IA may be allowed.

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The learned counsel for the Respondent has submitted that since the properties sought to be attached were already under mortgage with the Banks, there cannot be any direction against him to furnish security to the tune of the suit claim and consequently, the question of attachment of the said properties before judgement does not arise.

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This court heard the learned counsel on either side and considered their submissions and also carefully perused the materials placed on record.

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In this case, according to the Petitioner, the Respondent had availed a personal loan and the suit has been filed for recovery of money with interest. The present IA has been filed for a direction to the Defendant to furnish security to the value of the suit claim, failing which to pass an order of attachment of the petition mentioned premises before judgement, which was denied by the impugned order.

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On perusal of the records, it is seen that in the affidavit, the Petitioner has stated that the Respondent is making hectic attempts to alienate. That

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CRP(NPD)No.245 of 2017

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averment is sufficient to order attachment before judgement.

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The Petitioner has further stated in the affidavit that in so far as the registered encumbrances are concerned, attachment before judgement may be ordered subject to the liabilities contracted by the Respondent with the Banks.

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In view of the above, this Civil Revision Petition is allowed. The impugned order dated, 03.12.2016, made in IA.No.631 of 2016, in OS.No.308 of 2016, by the III Additional District Sessions Court, Coimbatore is set aside and the said IA is allowed. No costs. Consequently, the connected MPs are closed.

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.02.2021
Index:Yes/No
Web:Yes/No
Speaking/Non Speaking
Srcm
To

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The III Additional District Sessions Court, Coimbatore.

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CRP(NPD)No.245 of 2017

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A.A.NAKKIRAN, J.

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Srcm

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Pre-Delivery Order in
CRP(NPD)No.245 of 2017
.02.2021

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N.Gopalasamy S/O Late v. D.Gopalasamy

Case brief

What is this about?

What did the court decide?

N.Gopalasamy S/O Late v. D.Gopalasamy

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

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