Remanded

Sangem Radhika v. Boga Shankaraiah , Shankar

Telangana HC18 Sept 2014CRP/1900/2014

Case brief

AI extract

What is this about?

This revision petition challenged an order adjourning an application for attachment before judgment. The High Court remanded the matter to the lower court to decide the applications after hearing all stakeholders, noting that the lower court failed to assign reasons for the adjournment despite the petitioner's claim of irreparable loss.

What did the court decide?

Directed the lower court to pass appropriate orders on both the petitioner's and respondent's applications within one month, giving opportunity to all stakeholders.

Sangem Radhika Vs Boga Shankaraiah… — Contract and Commercial Disputes | Telangana HC (2014)

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THE HON'BLE SRI JUSTICE A.V. SESHA SAI

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CIVIL REVISION PETITION No.1900 of 2014

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ORDER:

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The plaintiff in O.S.No.54 of 2014 on the file of the Court of the I Additional District Judge (Chairman, Motor Accidents Claims Tribunal), Nalgonda, is the petitioner in the present revision petition. 2. This revision, under Article 227 of the Constitution of India, is filed, assailing the order dated 12.06.2014 passed by the said Court, directing I.A.No.624 of 2014 filed by the petitioner/plaintiff under Order 38 Rule 5, to be called along with the suit on 18.07.2014.

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3. The facts and circumstances, leading to the filing of the present revision petition, are as infra:

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The plaintiff/petitioner instituted O.S.No.54 of 2014 against the respondent/defendant on 2.06.2014 for recovery of a sum of Rs.55,00,000/- together with interest on the foot of a promissory note dated 2.01.2014. Along with the suit, the petitioner also filed I.A.No.624 of 2014 under Order 38 Rule 5 C.P.C., seeking attachment of the petition schedule properties. In the affidavit filed in support of the said Interlocutory Application, the petitioner stated that he reliably learnt that the respondent is indebted to several persons and is unable to pay the due amounts, and due to the pressure of the debtors he is trying to leave the territorial jurisdiction of the Court and intending to settle elsewhere after alienating the properties held by him. In the affidavit, the petitioner also stated that in order to evade payments to the debtors, the respondent already sold away the other properties in favour of the third parties and now trying to alienate the schedule mentioned properties and entered into agreement of sale, and in the event of the respondent succeeding in his attempts the petitioner would be put to irreparable loss and troubles.

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4. The Court below on 3.06.2014 issued notice to the respondent. By virtue of the impugned order the Court below while

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recording that the respondent refused to receive the notice and called absent, and while setting the respondent ex parte, directed the I.A. to be called on 18.07.2014. Challenging the said order to the extent of adjourning I.A., without passing any orders, the present revision petition came to be filed.

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5. Responding to the notice issued by this Court, an application in C.R.P.M.P.No.4359 of 2014 has been filed by the respondent, supported by a counter affidavit, seeking vacation of the interim orders dated 01.07.2014 passed by this Court.

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6. Heard Sri K. Sarath, learned counsel for the petitioner and Sri K. Lakshman, learned counsel for the respondent, apart from perusing the material available on record.

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7. It is contended by the learned counsel for the petitioner that the order of the Court below, adjourning the I.A., and posting along with the suit, without assigning any reasons, is erroneous, contrary to law and is opposed to the very spirit and object of the provisions of Order 38 Rule 5 of C.P.C. It is further contended by the learned counsel that the Court below ought to have passed an order by taking into consideration the attitude on the part of the respondent in refusing to receive the notice and remaining ex parte. It is nextly contended by the learned counsel that in the event of alienating the schedule properties in favour of the third parties by the respondent pending the I.A and the suit, the petitioner would be put to irreparable loss and hardship.

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8. Per contra, it is strenuously contended by Sri K. Lakshman, learned counsel for the respondent that there is neither illegality nor any jurisdictional infirmity in the impugned order passed by the Court below, and as such, the present revision petition is not maintainable under

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Article 227 of the constitution of India. It is also contended by the learned counsel that there are absolutely no ingredients of Order 38 Rule 5 C.P.C., in the case made out by the petitioner. It is further

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contended by the learned counsel that in the affidavit filed in support of the interlocutory application, there are absolutely no reasons whatsoever assigned by the petitioner in terms of the mandatory requirements as stipulated under Order 38 Rule 5 of C.P.C. It is also contended that in the absence of satisfying the ingredients of Order 38 Rule 5, the petitioner is not entitled to the relief of attachment before judgment. In support of his submissions and contentions, the learned counsel places reliance on the judgments of this Court in Surender Singh Bajaj v. Kitty Steels Limited^[1] and Chairman & Managing Director, Rastriya Pariyojana Nirman Nigam Ltd., & ors. V. Shri Rambachane Singh^[2]

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9. In the above backdrop, now the question that arises for consideration of this Court is whether the Court below is justified in passing the impugned order and whether the petitioner is entitled for any relief in the present revision petition under Article 227 of the Constitution of India.

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10. The object of the provisions of Order 38 Rule 5 C.P.C.,, which deal with attachment before judgment, is to prevent any attempt on the part of the defendant to defeat the realisation as per the decree that may be passed against him. If the attachment is to be effected, the Court, before whom such application is filed, is required to act with promptness, otherwise the very object and intention behind the said provisions would be frustrated and defeated. The primary object underlying in Order 38 C.P.C., is to enable the plaintiff to realise the fruits of the decree, if passed eventually, and to arrest or prevent any attempt by the defendant to defeat or delay the execution of such decree.

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11. I n Sardar Govindrao Mahadik v. Devi Saha i^[3] , the Hon'ble Apex Court held that the sole object behind Order 38 C.P.C., levying attachment before judgment is to give an assurance to the plaintiff that his decree, if made, would be satisfied, and is a sort of

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guarantee against the decree becoming infructuous for want of properties available. It is also a settled proposition of law that unless the party applying for attachment, under the provisions of Order 38 C.P.C., is required to fulfil and satisfy all the requirements as stipulated under Order 38 Rule 5 C.P.C., he is, undoubtedly, not entitled for any relief under the said provision of law. In fact, in the above referred judgments cited on behalf of the respondent, this Court categorically laid down the principles in the said direction.

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12. The complaint in the instant revision petition is that the petitioner filed the I.A. along with the suit under Order 38 Rule 5 C.P.C., seeking attachment of the petition schedule properties. The Court below issued notice to the respondent on 3.06.2014 and directed I.A to be filed on 12.06.2014. The Court below in the impugned order 12.06.2014 recorded that the defendant refused to receive the notice and while setting the defendant ex parte, directed the matter to be listed on 18.07.2014. As stated by the learned counsel for the petitioner, the learned Judge did not assign any reasons for not taking up the I.A., and for posting the same along with the suit. It is brought to the notice of this Court that the Interlocutory Application filed by the respondent, seeking to set aside the ex parte order, enclosing counter affidavit in this I.A., is also pending before the Court below.

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13. This Court on 01.07.2014 granted status quo with regard to the possession of the property. In these circumstances and taking into consideration the nature of controversy, this Court deems it appropriate to direct the Court below to pass appropriate orders on I.A.No.624 of 2014 as well as the I.A. filed by the respondent, after giving opportunity to all the stake holders and pass appropriate orders thereon.

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14. For the aforesaid reasons, the civil revision petition is disposed of, directing the Court below to pass appropriate orders on I.A.No.624 of 2014 and also on the application filed by the respondent seeking to set aside the ex parte order, without being influenced by

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any of the observations made by this court, in this order within a period of one month from the date of receipt of a copy of this order. Meanwhile, interim order granted by this Court on 01.07.2014 shall continue to operate. No order as to costs.

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_______________________ JUSTICE A.V. SESHA SAI.

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18^th September, 2014 Js.

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[1] 2002 (3) ALD 741

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[2] 1997 (3) A.P.L.J. 16 (HC)

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[3] AIR 1982 SC 989

Sangem Radhika v. Boga Shankaraiah , Shankar

Case brief

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Sangem Radhika v. Boga Shankaraiah , Shankar

Case brief

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