Allowed

Smt. Gajula Nirmala v. Akula Anjaiah

Telangana HC4 Jun 2013CRP/6576/2012

Case brief

AI extract

What is this about?

Allowed a Civil Revision Petition against an order dismissing a suit for recovery and attachment before judgment, considering the risk of irreparable loss. Directed the petitioners to obtain a succession certificate within three months, with an undertaking from the respondent not to alienate property.

What did the court decide?

Succession certificate to be obtained within three months; respondent undertook not to alienate property during this period; matter remanded to lower court.

Smt. Gajula Nirmala Vs Akula Anjaiah — Contract and Commercial Disputes | Telangana HC (2013)

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THE HON’BLE SRI JUSTICE B. CHANDRA KUMAR CIVIL REVISION PETITION No.6576 of 2012

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ORDER:

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1 The petitioner’s case is that the respondent took Rs.4.00 lakhs as loan from the husband of the first petitioner on 27.06.2009 and also deposited the original title deeds of his property. On 13.02.2010 the husband of the first petitioner died. When the petitioners issued a legal notice on 17.01.2012, the respondent refused to receive the said notice. The petitioners filed O.S.No.102 of 2012 for recovery of Rs.6,66,500/- and also filed I.A.No.458 of 2012 seeking attachment before judgment but the lower Court dismissed the said petition on the ground that the petitioners have not obtained succession certificate after the death of the husband of the first petitioner.

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2 The leaned counsel for the petitioners submits that there is urgency in the matter and the succession certificate may become necessary while obtaining the judgment and decree in the suit and it is not required at present. It is also submitted that there is no specific denial of the relationship of the petitioners with late G. Mohan Reddy, the husband of the first petitioner. The learned counsel further submits that the lower Court ought to have attached the property before judgment to safeguard the interest of the petitioners and ought to have given some time to the petitioners to obtain succession certificate.

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3 The only contention of the learned counsel for the respondent is that the CRP is not maintainable and that the petitioners ought to have filed an appeal against the impugned orders. He has referred to Order 43 Rule 1 (q) CPC in support of his contention.

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4 As seen from the record, the petitioners filed an application under Order XXXVIII Rule 5 CPC. Admittedly, no orders are passed under Rule 2, Rule 3 or Rule 6 of Order XXXVIII CPC. But the petitioners have approached the lower Court under Order XXXVIII Rule 5 CPC seeking attachment of the property. Therefore, there is no force in the contention of the learned counsel for the respondent.

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5 Though it appears that the petitioners ought to have obtained succession certificate before filing the suit, but in view of the fact that any delay in filing an application for attachment before judgment may cause irreparable loss to the petitioners and as the counsel for the respondent has now given an undertaking that the respondent will not alienate the property for a period of three months from today, the CRP is allowed directing the petitioners to obtain succession certificate within three months from today and in the meanwhile the respondent shall not alienate the property.

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6 Subject to the observations made supra, the impugned order is set aside and the matter is remanded to the lower Court for passing fresh orders. However, the lower Court may give an opportunity to the petitioners to file succession certificate. It is also made clear that there is no need to discuss the merits and demerits of the case in interlocutory applications, which will cause prejudice to the parties. Therefore, the lower Court may pass appropriate orders without being influenced by any of the observations made in I.A. No.458 of 2012 and also in this order. No order as to costs.

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B. CHANDRA KUMAR, J.

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Date: 04.06.2013 Kvsn

Smt. Gajula Nirmala v. Akula Anjaiah

Case brief

What is this about?

What did the court decide?

Smt. Gajula Nirmala v. Akula Anjaiah

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

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