Revision allowed. HC held trial Court erred in dismissing attachment before judgment petition based on property misdescription without examining prima facie case and threat of asset alienation, directing remand.
Civil Revision Petition allowed; impugned order set aside; matter remitted to trial Court for enquiry on merits within one month.
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.
C.R.P.(MD)No.330 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
Reserved on : 29.11.2023
Delivered on : 20.02.2024
CORAM:
THE HON'BLE MR.JUSTICE K.MURALI SHANKAR
C.R.P.(PD)(MD)No.330 of 2023 and C.M.P(MD)No.1607 of 2023
Priya Chit Funds & Co, Having Office at No.15/1, Ramakrishnapuram, Karur. Rep.by its Partner C.K.Veluswamy, S/o.Krishnasamy Gounder, No.393/9, Vangiliyappa Nagar, Chinnandankoil Road, Andankoil East Village, Manmangalam Taluk, Karur District.
: Petitioner/Petitioner/Plaintiff
Vs.
1.S.Subramamanian
2.S.Bhavani : Respondents/Respondents/Defendants
Prayer : This Civil Revision Petition filed under Article 227 of the Constitution of India, to set aside the fair and decreetal order, dated 07.12.2022 made in I.A.No.1 of 2021 in O.S.No.748 of 2021 on the file of the Additional Sub Court, Karur.
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For Petitioner : Mr.K.Prabhakar
C.R.P.(MD)No.330 of 2023
For Respondents : Mr.H.Arumugam, for R2.
: No Appearance, for R1.
ORDER
The Civil Revision Petition is directed against the order passed in I.A.No.1 of 2021 in O.S.No.748 of 2021, dated 07.12.2022 on the file of
the Additional Sub Court, Karur, dismissing the petition filed under Order 38 Rule 5 of the Code of Civil Procedure.
for recovery of Rs.7,26,200/- due on the promissory note executed by the respondents/defendants. The revision petitioner has also filed a petition under Order 38 Rule 5 of C.P.C., seeking orders for attachment before judgment of the petition mentioned property. The respondents have filed elaborate counter statement raising objections. The learned trial Judge, after enquiry, has passed the impugned order, dismissing the petition. Aggrieved by the order of dismissal, the plaintiff has preferred the present revision.
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C.R.P.(MD)No.330 of 2023
have borrowed a sum of Rs.5,00,000/- from the plaintiff's firm and executed a promissory note on 02.08.2017 agreeing to repay the loan amount with interest at Rs.0.06 paise per day; that though they have paid the interest upto 31.10.2019, they have not paid any amount towards subsequent interest or principal amount; that the plaintiff has then sent a legal notice, dated 20.02.2021 demanding payment; that the defendants having received the notice, neither sent any reply nor made any payment; that the plaintiff came to know from one N.R.Mani that the second respondent/defendant has been attempting to alienate or encumber her property to his close allies and that therefore, the revision petitioner was constrained to file the above petition seeking for attachment before judgment.
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C.R.P.(MD)No.330 of 2023
demanded the said finance company to return the documents taken from them, but they have been postponing the same on some pretext or other; that the revision petitioner has suppressed the availability of a building measuring 10 feet x 16 feet, car shed, electricity and water connections and bore well in the petition mentioned property; that though the petition mentioned property is worth about more than Rs.1,00,00,000/-, they have valued the property very low and that therefore, the petition is liable to be dismissed.
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C.R.P.(MD)No.330 of 2023
Solanki Traders reported in 2008 (2) SCC 302 , wherein the Hon'ble Apex Court has observed as follows :
“4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of order 38 rule 5 CPC in particular, is to prevent any defendant from defeating the realization of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The Scheme of Order 38 and the use of the words `to obstruct or delay the execution of any decree that may be passed against him' in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5CPC. It is well-settled that merely having a just or valid claim or a prima facie case, will not entitle the
C.R.P.(MD)No.330 of 2023
plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case.”
C.R.P.(MD)No.330 of 2023
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C.R.P.(MD)No.330 of 2023
enquiry by permitting both the parties to adduce evidence and to decide the petition for attachment before judgment, on merits in accordance with law. The learned Additional Subordinate Judge is directed to conduct enquiry and dispose of the petition within a period of one month from the date of receipt of copy of this order. Consequently, connected Miscellaneous Petition is closed. No costs.
20.02.2024
NCC :yes/No Index :yes/No Internet:yes/No das
To
2.The Section Officer, VR Section, Madurai Bench of Madras High Court, Madurai.
C.R.P.(MD)No.330 of 2023
K.MURALI SHANKAR,J.
das
Pre-delivery order made in C.R.P.(PD)(MD)No.330 of 2023 and C.M.P(MD)No.1607 of 2023
Dated : 20.02.2024
3 issues framed by the court
Whether the trial Court erred in dismissing the attachment before judgment petition based solely on misdescription of property without examining the prima facie case and asset alienation.
Whether the High Court has jurisdiction to remand the matter under Article 227 for lack of jurisdiction by the lower court in the revisional order.
Whether the requirements of Order 38 Rule 5 CPC were properly applied by the trial Court.
Colour shows how this judgement treated each authority
Raman Tech. & Process Engg. Co. & Anr vs Solanki TradersReferred¶40
Raman Tech. & Process Engg. Co. & Anr vs Solanki Traders reported in 2008 (2) SCC 302 · Who else cites this
2 provisions across 2 enactments
Priya Chit Funds & Co Rep. by C.K.Veluswamy
S.Subramamanian
S.Bhavani
K.MURALI SHANKAR
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
