Allowed

Sri. G.V.L. Srinivasulu v. Mrs. R. Vijaya Laxmi

Telangana HC28 Mar 2022CRP/683/2021

Case brief

AI extract

What is this about?

Attachment before judgment in four money-recovery suits was challenged for failure to record the requisite satisfaction. The Court allowed all four revisions, set aside the attachment orders and remitted the applications for fresh consideration within three months.

What did the court decide?

All four attachment orders set aside; applications remitted for fresh consideration within three months of receipt of the order. No order as to costs.

Sri. G.V.L. Srinivasulu Vs Mrs. R. Vijaya Laxmi — Execution and Attachment | Telangana HC (2022)

¶1

IN THE HIGH COURT FOR THE STATE OF TELANGANA AT HYDERABAD

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IVONDAY ,THE TWENTY EIGHTH DAY OF N/ARCH TWO THOUSAND AND TWENTY TWO

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PRESENT

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THE HONOURABLE SRI JUSTICE A.VENKATESHWARA REDDY

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CIVIL REVISION PETITION Nos. 1066. 642 . 683 and^,t058 of 2021

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CRP No. 1066 ol 2021

¶7

Petition Under Article 227 ol the Constitution of lndia aggrieved by the order dated 23-04-2021 in l.A.No. 259 of 2021 in O.S.No. 32 ot 2021 on the file of the Court of the Xll Additional District & Sessions Judge, Ranga Reddy District at Vikarabad.

¶8

Between:

¶9

Sri. G. Srinivasulu, S/o G. Subramanyam, aged about. 52 Yrs., Occ. Business, Rl/o H. No.3-1-35, Bus Stand Road, Tandur, Dist. Vikarabad.

¶10

...PET|TIONERy Respondent No. 2 / Defendant No. 2

¶11

AND

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Smt. Pushpa Devi , S/o Om Prakash Agarwal, Aged about. 64 Yrs., Occ. House Wife, resident of H. No. 7-3-5211, Seetharampet, Tandur Proper and Mandal, Dist. Vikarbad. .. Respondent / Petitioner / Plaintiffs

¶13

GVL Srinivasulu, Bus Stand Road, Tandur- 501141, Vikababad District, rep., by Sri. G. Srinivasulu S/o G. Subramanyam, aged about. 52 Yrs., Occ. Business, R/o H. No.3-1-35, Bus Stand Road, Tandur, Dist. Vikarabad. (No ...RESPONDENTi

¶14

such Business Firm) (Not Necessary Party ). Respondent No.1 / Defendant No.1

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lA NO: 1 OF 2021

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Petition under Section 151 CPC praying that in the circumstances stated in the affidavit filed in support of the petition, the High Court may be pleased To pass an order of suspension of the orders of attachment before judgment of the property bearing H. No. 3-1-35 and 38 , admeasuring 484 sq. Yds., equivalent to 404.68 Sq. Mtrs., with Ground, First and Second Floors situated at.Backside of Potli Maharaj Temple, Tandur, Vikarabad District, within the Limits of SubRegistrar, Tandur , District Registrar, R.R. Dist., bounded at North. house of Narayan Rao, South. H. No. 3-1-43, East. Way, and at , West: Government Godown, by the (FAC) XII Addl. District and Sessions Judge, Ranga Reddy at Vikarabad in 259 . Of 2021 in O.S. No. 32 . Of 2020, dt. 23rd April.,2021 till finalization of the CRP to meet the ends of^justice.

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Counsel for the^{Petitioner: SRI BAJRANGSINGHTHAKUR}

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Counsel for the^{Respondent No. 1 : SRI VIJAY KUMARHEROOR}

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CIVIL REVISION PETITIO^{N NO: 642 OF 2021}

¶20

Petition Under Article^{227 of lhe constitution of lndia aggrieved by the} order dated 25-02-2021^{in LA.No. 12 0f 2021in o.S.No.41 0f 20200n the file} of the court of^{the xll AdditionalDistrict & sessions Judge, Ranga Reddy} District at Vikarabad.

¶21

Between:

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sri. G.V_L. Srinivasulu,^{s/o G. subrahmanyam, Aged about 51 Yrs., Occ.Business,} il; H. N;. s-t-es. ers Stand^{Road, Tandui, Dist. Vikarabad, PlN. 501141'}

¶23

...PETITIONER/ Respondent^{/ Defendant}

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AND

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1' Dr' Harshavardhan^{S/o Dr. Prabhakar,Age-d about. 43 Years, occ. Doctor,} nesiOentJof Tandur,^{presenly residingai D. No. 955, F. Ng,104,First Floor,} Birg"d; Habitat, Deewans^{Road,Lakshmipuram'Mysure( K S )'}

¶26

2.Mrs.SujathaPrabhakar,W/oDr.Prabhakar,Agedabout.T0YrS.,occ'House - Wii",-n6.ioents of ranour, iresentty residing alt D' No 955, F No l04 First iHi, Blrg;A; Habitat,^{Deewans Road, Lakshmipuram,It/ysure( K S )}

¶27

Dr. Prabhakar,^{S/o Late Vidyaranya,Aged about 76 Yrs'' Occ Doctor'} -. - nesioentJof Tandur, iresentty relioing at D. No. 955, F. No. 1 04, First Floor, airgld; irubitri,^{Deewans Road,Lat<shmipuram,It/ysure( K S )'}

¶28

...RESPONDENTS/^{Petitioners/ Plaintiffs}

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IA NO: 1 OF 2021

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Petition under^{section 151 cPC praying thatin the circumstances statedin} the affidavit filed^{in support of the petition, the High Court may be pleasedto pass} an order of^{suspensionof the orders of attachment before iudgmentof the} prop".ty bearing H. No: 3-1-35^{& 38, consisting house GroundPIus 2 Upper} 'ilo;rs,^-with open place total admeasuring 484 Sq. yds., situated at ward No.3, eio.[' No.r,^{'Besideof pofli Mahara.i Temple,under the Limits of Tandur} rvrrni.ip"riiv'ot^{Vikarabad boundedat ltortn: House of Narayan Rao, South:H No:} 5-i-+C, e"!t,^{Way/Road and at West: Govt., Go down, by the Xl Addl' D-istrict&} S"..ion.^{juOg", R"ng"Reddyat Vikarabad in l A No: 12 : of 2021 in O S No:} it-: O,f 2020,-di:25fli^{Feb., 2O2t tll finalizationof the CRP to meetthe ends of} justice.

¶31

Counsel for^{the Petitioner: SRl. BAJRANGSINGHTHAKUR}

¶32

Counsel forthe^{Respondents:SRI M' A' K' MUKHEED}

¶33

CIVIL REVISION PETITION NO: 683 OF 2021

¶34

Petition Under Article 227 of the Constitution of lndia aggrieved by the order dated 2-03-2021 in l.A.No. 100 of 2021 in O.S.No. 14 of 2021 on^{the file} of the Court of the Xll Additional District Judge & Sessions Judge,^Ranga Reddy at Vikarabad.

¶35

Betwee n:

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Sri. G.V.L. Srinivasulu, S/o G. Subrahmanyam, Aged^{about. 51 Yrs., Occ. Business,} R/o H. No.3-1-35, Bus Stand Road, Tandur, Dist. Vikarabad. PlN. 501141.

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,..PETlTlONERy RespondenU Defendant

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AND

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I/rs. R. Vijaya Laxmi, W/o Late R. Rangaswamy, Aged about. 87^{Yrs., Occ. House} wife, Rl/o D. No.32, Brundavan House, Ranga Rao Road, Shankerpuram,^Benguluru ...RESPONOENT/ Petitioner / Plaintiffs - K.S.,

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lA NO: 1 OF 2021

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Petition under Section 151 CPC^praying that in the^{circumstances statedin} the affidavit filed in support of the^petition, the^{High Court may be pleased to pass} an order of suspension of the orders of^{attachment before} .judgment^{of the} property bearing H.No. 3-1-99/5A, admeasuring 300 Sq. Yds., ot of total 600^Sq. Yds., with^plinth area in Cellar2100 Sq.^{Feet, GroundFloor2100 Sq. Feets, First} Floor 2100 Sq. Feets, Construction in Survey^{No. 137 /P, situated at Tandur} Proper in Ward No. 3, Block No.¹ ,^{Kodangal Road,within the limitsof Tandur} tvlunicipality, Vikarabad District bounded at^{North:KodangalRoad,South:} Compound Wall of G. Hanumanth^{Rao.,East: Ramaining paft of House "B" of} Gangshetty Gopala Krishna and at^{West : Houseof lndira} ,^{by the Xl Additional} District & Sessions Judge, Ranga^{Reddyat Vikarabadin l.A.No.lOO of 2021tn} O.S.No. 14 ol 2021 dated^{2nd lrAarch,2021till finalizationof the CRP.}

¶42

Counsel for the Petitioner: SRl.^{BAJRANGSINGHTHAKUR}

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Counsel for the Respondents:^{SRI M A K MUKHEED}

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tt/ r'

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CIVIL REVIS ION PET ITION NO: 1058 OF 2021

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Petition Under Article 227 o! the constitution of lndia aggrieved by the Judgment dated 28-04-2021 in t.A. No. 291 0t 2021 in O.S.No. ai6t zozt on tne file of the court of the Xll Additional District Judge, Ranga Reddy at Vikarbad.

¶47

Between:

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Sri. G.-Srinivasulu, S/o G. Subramanyalrr aged about. 52 yrs., occ. Business, Rr/o H. No.3-1-35, Bus Stand Road, Tandui, Dist.Vikarabad

¶49

...PETIT|ONERy Respondent No.2 / Defendant No. 2

¶50

AND

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Sri- Dinesh Agaruval , S/o Om prakash Aganrual, Aged about. 46 yrs., Occ. Business,

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Sankar Agaruval, S/o Dinesh Aganrral, Aged about. 11 yrs., Minor,

¶53

Jayesh Agarwal, S/o Dinesh Agan,ral, Aged about. 14 yrs., Minor, No.2 and 3 are.represented through their Guardian and Father. Dinesh Aganruar blc om Prakash Agaruual, aged about. 46 yrs.,

¶54

Nidhi ASanry?!, W/o Dln_e^s.l_r Agan.ral, Aged about. 38 yrs., Occ. Housewife, All residents of H.No. 7-3-52li, Seetharampet, Tandur proper tr,ranoll, oi.t. Vikarbad. .. Respondenti/^{petitioners/ piaintiffs} "no

¶55

5 GVL- Srinivasulu, Bus stand Road, Tandur- s01141 , Vikababad Drstrict. reD.. pV Sri. e. Srinivasulu S/o G. Subramanyam, aged about. SZ Vrs., OJc. Business, R/o H. No.3-1-35, Bus Stand Road, Taridur, Oist Vikirabari. f No ...RSPONDENT/

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such Business Firm) ( Not Necessary party ) Respondent No.1 / Defendant No. 1

¶57

lA NO: 1 OF 2021

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Petition under section 151 cPc praying that in the circumstances stated in the affidavit filed in support of the petition, the High court may be pleased to pass an order of suspension of the orders of attachment before judgment of the property bearing H. No. 3-1-99/54, admeasuring 300 Sq. yds., or 251 .16 SqMtrs., out of 600 Sq. Yds., with plinth in cellar 2100 Sq. Feet ( RCC) Ground Floor, 2100 Sq. Feet ( RCC) in first Floor, 2100 Sq. Feet ( RCC) constructed on Sy. No. 137/p of Tandur Proper, situated in Ward No. 3, Block No.1 at Kodangal Road, within the Limits of Tandur Municipality, Vikarabad District, bounded at North. Kodangal Road, South. Compound of G. Hanmanth Rao, East. Remaining part of B of Gangeshetty Gopala Krishna, ., West. House of N. lndira, by the (FAC) Xil Addt. District and Sessions Judge, Ranga Reddy at Vikarabad in l.A. No. Zg1 . Of 2021

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in O.S. No. 33 . Of 2020, dt.28th Aprit., 2021 fll finatization of the CRp to meet the ends of justice.

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Counsel for the Petitioner: SRl. BAJRANG SINGH THAKUR Counsel for the Respondent: SRI VIJAY KUMAR HEROOR

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The Court made the following: COMMON ORDER

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THE HON'BLE SRI JUSTICE^{A. VENKATESHWARAREDDY} CRP Nos.1066,642 .68^{3 and 1058 of2O2l}

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COMMON ORDER:

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A11 these Civil Revision^{Petition Nos.1066, 642, 683} and 1058 of 2021. are^{filed under Article 227 of the} Constitution of India by the^{respondent/defendant in} LA.No.259 of 2O2l in O'S.No.32^{of 2O2I, in I.A.No'12 of} 2O2l in O.S.No.41 of^{2020, inI.A.No.1OO of 2027 in} O.S.No.14 ol 2O2l and in^{I.A.No.29 1 of 2O2l in O.S'No 33} of 2O2l respectively on^{the file of the learnedXII Additional} District and Sessions^{Judge,Ranga Reddy at Vikarabad'}

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a) I.A.No.259 of^{2027 in O'S.No.32of 2O2l was filed by} the petitioner/plaintiff^{thereinunder Order-38 Rule 5 read} with Section 151 of^{the Civil Procedure Code, 1908(for} short 'CPC) for attachment^{before judgment of petition} schedule property i.e.,^{house bearing Nos.3-1-35 &38} admeasuring 484 square^{yards with ground+ two floors} situated at backside^{Ploliti Mahraj Temple,under the limits} of Tandur Municipaiity,^{Vikarabad District'}

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Page 2 of 18

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AVRJ CRP Nos.I066,642, 683 & 1058 of 202l

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b) I.A.No.72 of 2O2l in O.S.No.4l of 2O2O was filed by the plaintiffs therein under Order-38 Rule-S read with Section 151 of CPC for attachment before judgment in respect of petition schedule property i.e., house bearing Nos.3- 1-35 and 38 consisting of ground + two floors, backside Ploliti Mahraj Temple, under the limits of Tandur, Vikarabad District.

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c) LA.No.100 of 2021 in O.S.No.41 of 2O2O was filed by the petitioner/plaintiff therein under Order-38 Rule-5 read with Section 151 of CPC for attachment before judgment of petition schedule property i.e., house bearing Nos.3-199/5A admeasuring 300 square yards, out of 600 square yards with plinth area in cellar, ground and first floor, each 2100 square feet constructed in Survey No.137/p situated at Tandur Village, Ward No.3, Kodangal Road, within the limits of Tandur Municipality, Vikarabad District.

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d) I.A.No.29 1 of 2O2l in O.S.No.33 of 2O2l was filed by the petitioner/plaintiff therein under Order-38 Rule 5 read with Section 151 of CPC for attachment before judgment of house bearing No.3-1-99 l5A admeasuring 300 sgrare

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Page 3 of 18

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AVRJ CRP Nos.1066, 642. 683 & 1058 of202l

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yards, out of 600 square yards with plinth area of 2100 square feet each in cellar, ground and first floor constructed in Survey No.137/p, Tandur village, Ward No.3 within the limits of Tandur Municipality, Vikarabad District.

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A11 the above original suits are filed by the different plaintiffs against G. Srinivasulu, s/o. G. Subramanyam as the sole defendant for recovery of money. Along with the suit, the above IAs are filed seeking attachment before judgment of petition schedule properties mentioned therein. In IA No.259 of 2O2l in OS No.32 of 2021 and in IA No.l2 of 2O2l in OS No.41 of 2O2O, the property involved is house bearing Nos.3-1-35 & 3g as described above. Whereas, in IA No.100 of 2O2l in OS No.14 of 2O2l and in IA No.29 1 of 2021 in OS No.33 of 2O2l the schedule of property is house bearing No.3-1-99/5A as indicated above. Thus, though in all the above IAs, petitioners/ plaintiffs are different persons, the respondent/ defendant is one and the sarne person and the suit claim is for recovery of money. Accordingly, since the common question

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Page 4 of 18

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AVRJ CRP Nos.1066, 642, 683 & 1058 ol202l

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of attachment before^judgment is involved against the^same defendant in respect of two different^properties, it^is proposed to dispose of all the four civil revision petitions together, through this common order.

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I.A.No.259 of 2OT. in O.S.No.32 of 2O2l^{was allowed} as per the docket order dated 23.04.2021,^{I.A.No.12 of} 2O2l in O.S.No.4 1 of 2O2O was allowed as^{per the docket} order dated 25.02.2021 , LA.No.100 of^{2027 in O'S.No.14 of} 2O2l was allowed as per the order dated 02.03.2027^and whereas, IA No.291 of 2O2l in OS No.33 of 2O2l^was allowed as per the orders dated 28.04.2021.^Feeling aggrieved by the said orders, the defendant^{has filed these} four civil revision petitions, assajling the orders^mentioned in the above IAs wherein the petition schedule^properties were attached before^judgment.

¶80

Heard learned counsel for the petitioner/^defendant and the respondents/plaintiffs. Perused the^material available on record. The detailed submissions^{have been} made by the learned counsel on both sides, which^{are more} or less on pieaded lines. Therefore, it may not^{be necessa-rJi}

¶81

PaBe 5 of 18

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AVIiJ CRP N-0s.1066. 6{2. 683 & 1058 oi202l

¶83

to refer in detail such submissions. However, such submissions so made have received due consideration of the Court"

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For the sake of convenience, the parties are hereinafter referred to as plaintiffs and defendant as arrayed in the original suit.

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In all the above IAs, the plaintiffs have filed the applications for attachment before judgment of the petition schedule properties, as indicated above. The triar court through the orders impugned dated 23.04.2O2I, 25.02.2021, 02.03.2021 and 28.04.202 1 atlowed the said appiications with a slipshod order without assigning any reasons. Though an opportunity was given to the defendant to resist applications and the defendant has filed a detailed counter, the triar court has not considered the same. It is merely mentioned in the orders impugned passed in IA Nos.291 and 259 of 2O2I in OS Nos.33 and 32 of 2o2l respectivery that vakalat and counter a_ffidavit of respondent No.2, security is not furnished by the respondents. The learned counsei for the respondent No.2

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Page 5 of 18

¶88

AVRJ CRI> Nos.1066,642, 683 & I058 ol202l

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ls not responding to video ca1l, hence attachment before judgment of petition schedule house.

¶90

B. Whereas, IA No. j.2 of 2O2I was allowed as per the docket order dated 25.02.2021 holding that respondent is not ready for enquiry. Counsel for the petitioners is present. Heard. In the facts and circumstances of the petition and the documents filed by the petitioners, the attachment before judgment is ordered. However, no such order is found in IA No.100 of 2O2l in OS No.14 of 2021, but a warrant of attachment before judgment under Order_ 38 Rule-S CPC was issued. Even as per the grounds of revision in CRP No.683 of 2021, the date of any such order impugned is not mentioned except shou,ing the date as 02.03.2021, on which date the wa_rrant is signed by the learned Presiding Officer of the XII Additional District & Sessions Judge, Rang Reddy at Vikarabad.

¶91

9 . The leaned counsel for the revision petitioner/ defendant would submit that the impugned orders are passed without application of mind, without assigning aly reasons and such orders are unsustainable. He would

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¶93

Page 7 of 18

¶94

AVRJ CRP r,\os.t066,642. 683 & 1058 of202 t

¶95

submit that the defendant in all the above IAs filed a detailed counter disclosing that he is not liable to pay any such amount. Even otherwise, he is permaaent resident of that place. He is not moving out of the jurisdiction of the Court. At no point of time he tried to flee away to the United States of America by closing his office. Whereas, the plaintiffs are money lenders without any money lending licence ald all false allegations are made against the petitioners and the order passed is not sustainable. The learned counsel for the defendant relied on the follo,,ving deci sion s:

¶96

i) M/s. Raman Tech & press Engg. Co., M/s, Sotcnki Traderst

¶97

ii) Anumati u. punjab National Bq.nk2;

¶98

iii) Rajender Singh u. Ramd.har Slnght. iv) Srtpathi PanditaraJula Venkannq. Babu v. Varalq.kshmi Jinance Corporation Rajah.mundrya ;

¶99

v) M/s, R.B.M. pati Joint Venture, petitioner a, M/s, Bengal Bullder, Opposite partgF;

¶100

vt) H.R, Hatappa and others u, H. Deaaraju6.

¶101

,2008) 2 SCC 302 (2004) 8 SCC 498 ffi-zoor sc 2220

¶102

- o tg96 (4) ALD 453 (DB) , AIR 20O4 Catcutra 58

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Page 8 of 18

¶104

AVRJ CRP Nos.1066, 642, 683 & l05E ol202l

¶105

Per contra, the learned counsel for the plaintiffs seeks to submit that the defendant is liable to pay the amount to the plaintiffs in the above original suits. Accordingly, the plaintiffs in OS No.32 of 2021 , OS No.41 of 2O2O, OS No. 14 of 2O2l and OS No.33 of 202t have filed sepa-rate suits along with IAs for attachment before judgment as indicated above. Though the triar court failed to assign reasons for ordering attachment before judgment, it has arrived at a right conclusion as the defendant is trying to flee away from out of the jurisdiction of the Court to frustrate the decree, if any passed in favour of the plaintiffs. Hence, the tria_l Court has rightly ordered attachment before judgment of petition schedule properties ald the order is sustainable and relied on the principles laid in the following decisions.

¶106

il Bommanasaree Mand.ir, appellants u, Manisha Scrrees, responden{;

¶107

ii) Ajag Agarwal and others a, Nagarjuna Finance Limite&.

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6 AIn 2009 Karnataka 29

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7 Atp 2oo2 Ap 6o

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_8 zooz 1s1ALD 708

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Page 9 of 18

¶112

AVzu CRP Nos.l066, 642, 683 & 1058 of 2021

¶113

I have given my anxious and thoughtful^{consideration} to the principles laid in the above^{decisionsrelied by the} learned counsel for the defendant^{and plaintiffs. In the} light of rival contentions made by both^{the parties, the} question that requires for consideration^is whether^{the trial} court is required to record reasons^{before ordering issue of} warrant of attachment before^{judgmentunder Order-38} Rule-5 CPC.

¶114

Rule-S of Order-XXXVIII CPC is relevant^{for the} purpose of this case, r,l,hich reads as under:

¶115

"Where defendalt may be ca11ed upon^{to furnishsecurity} for production of^property

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(1) Where, at any stage of a suit, the^{Court is satislied,} by aflidavit or otherwise, that^{the defendaat, with intent} to obstruct or delay the execution^{of any decreethat may} be passed against him,-

¶117

(a) is about to dispose of the whole or^{any part of} his property, or

¶118

(b) is about to remove the whole or any^{partof his} property from t] e loca,1 limits of the^{jurisdictionof} the Court,

¶119

the Court may direct the defendant,^{within a time to be} fixed by it, either to furnish^{security,in such sumas} may be speci{ied in the order,^{to produceand place at} the disposal of the Court,^{when required,the said} property or the value of the same, or^{such portion} thereof as may be sufficient^{to satisfy the decree,or to} appear and show cause why^{he should not furnish} siiurity.

¶120

Page 10 of 18

¶121

AVRJ CRP Nos.1066, 642, 683 & 1058 of202l

¶122

(2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof.

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(3) The Court may also in the order direct the conditional attachment of t-lle whole or any portion of the property so specified.

¶124

(4) If aat, order of attachment is made without complyrng with the provisions of sub-rule (1) of this rule such attachment shall be void."

¶125

The power of Court to order attachment before judgment is attracted only when the plaintiff pleads and pima facie case is proven, two conditions are precedent. Thus, the provisions of Rule-S of Order-XXXVIII of CpC show two precedents. i) a decree that may be passed from being rendered infrucutous before passing an order. Under this provision, Court must be satisfied that not only the defendant is really trying to dispose of his property or about to remove it from its jurisdiction and ii) that his object to obstruct or delay the execution of arty decree that may be passed. Even when sucln prima facie case is proved without order of attachment cannot be straightaway issued without following the procedure contemplated in Rule-S of Order-XXXVIII CPC. The said rule requires the Court to

¶126

Page 11 of 18

¶127

AVRJ CRP Nos.l066. 642. 683 & 1058 ot202 i

¶128

direct the defendant to furnish security in such a sum as may be specified within the time stipulated by the Court.

¶129

From a reading of Order-XXXVIII, Rule_S CpC and the relevant Forms appended to CpC, it becomes clear that the power to attach before the judgment cannot be exercised in a routine manner. if the Court is satisfied prima facie with regard to conditions enumerated in Rule_S of Order-XXXVIII CpC, such reasons should be found in the order at least at the stage of ordering the warrant of attachment in Form_7. That is to say, if the defendant fails to furnish security or fails to satisfy the Court as to why securitSr is not necessary, the Court has to pass order giving reasons keeping in view the conditions mentioned in Rule-S of Order_XXXVIII CpC. Thus, furnishing of reasons rs mandatory and non_furnishing the reasons while issuing the attachment before judgment would indeed render the order defective. Direction for attachment before judgment before recording reasons, set aside as to the existence of conditions laid in Order_XXXVIII, Rule_S CpC is illegal.

¶130

Page 12 of 18

¶131

AVR' CRP Nos.l06(r.642. 683 & 1058 ol'2021

¶132

In similar set of facts, in the case of Md"nddld Suryanaragana, @ babji v. Sri Barla Babu Rao, s/o. Appd Raoe, a Division Bench of this Court while relying on the judgment of Hon'ble Supreme Court of India in M/s. Raman Iech & Press Dngg. Co., M/s. Solanki Traderslo and earlier decisions of this Court, set aside the orders passed by the trial Court and remitted the matter for fresh consideration in accordance with the principles laid by the Hon'ble Supreme Court in the above said decision.

¶133

In F.aman ?ech's case (1" supra) the Hon'b1e Supreme Court explained the possession under OrderXXXUII Rule-S CPC as below:

¶134

"The object of supplemental proceedings (applicatrons for arrest or attachment before^judgment, grant of temporary rnjunctions and appointment of receivers) is to prevent the ends ofjustice being defeated. The object of order 38 rule 5 CPC in particular, is to prevent any defendant from defeating the rea.lization of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdictron 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 sajd Rule, the court should be satisfied that there is a reasonable chance of a decree being

¶135

e zoto 1z1ALT 839 'o 1zoo81^{2 scc 302}

¶136

Page 13 of 18

¶137

AVIt CRP Nos.l066, 642.' 683 & I058 of 2021

¶138

¶139

passed. in the suit against the defendant. This would mean that the court should be satisfred the plai;tiff has a prima facie case. If the averments in the plaint anO the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, ,I_r"'.or., will not go to the next stage of examining fr"if_,1. ,fr. interest of Lhe plaintiff should be pro,.",. jby'..r.,",.rg power under Order 3g Rule SCpi. tt is well_settlei tfrat m.erely having a just or valid claim o., p.i-. i^"J.""", yll^{,ro! entitle} the plainriff to an orae'i oi uiL""fr^.rr, before judgment, unless he a.lso estaUtsfres iiat tire 1:f:id"-l.^i" .^{attemptingto remove o. airpo""} - ot fri" assets with the intention of defeating tfr" a!"."" tlr"t may be, passed. Equally well settled i""tfr. po"ltio., tfrrt even where the defendalt is removing * di"po"i.rg f.l" assets, an attachment before judgrie.r, *ijt not be prima issued, facie if the case.plaintiff is not able io "lrti"fy tfrJ-fr" ir" .

¶140

The power under Order 3g RuIe S CpC is drastic and extraordinary power. Such power should not te exercisea spa mechanlcalty- ngly and or strlctly merely ln for the accordance asktng, wlth the It "i""rj'il'"""aRuIe, The lurpose^{of Order 38 Rule S is not} to corxvert .o ,*".r."a debt irto a secured debt. Any attempt Uv . pi.i.riirr to utilize the provisions of Ordei3a nute'S a"s . f[""rr"" i., discouraged. coerclng the defendant Instances to are settle the not wanting where suit "f.i_ "i.ia bloatedU" and doubtful claims are realised U! ,.r"".rortou" plarntiffs by _^{obtaining ordersof urL"fr-."i'ilror"} Judgment and forcing the defendalts for out of court settlement, under threat of attachment.

¶141

(emphasis supplied)

¶142

The facts in the case of Bommanasaree Mand.ir {7 Lh supra) and in the present case are quite distinct and separate. In the case on hald, counter is filed, but the trial Court without considering the same simply passed the order of attachment before judgment. Whereas, in the reported decision, the respondent has submitted that he

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AVRJ CRP Nos.l066, 642. 683 & 1058 of202l

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would settle the matter or furnish the security, but defaulted it, Similariy, in the case of Ajdg Agarural,s case (8ti supra), only a conditional attachment was ordered under Order-38 Rule 5 (2) CPC. Whereas, in the case on hald, after issuing notice, the defendant has filed a detailed counter, but the Court below without considering the counter simply passed a slipshod order stating that the defendant and his counsel called absent and failed to furnish security. Accordingly, the principles laid in both the decisions relied by the learned counsel for the plaintiffs are not helpful to the plaintiffs in any way.

¶147

In Raman Tech's case (1"t supra), the Honble Supreme Court dealt with the object, nature and scope of powers under Order-38, Rule-S of CPC as indicated above. In order to avail the benefit of said provision, the plaintiff has to show pima facie that his claim is bona fide and valid and also to satisfy the case that the defendant is about to remove or dispose of the whole or part of his property with an intention to obstruct or delay the execution of any decree that may be passed against him.

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AVRJ CIIP Nos.l066. 612. 683 & 1058 ot202 t

¶150

Reverting back to the facts of the present case, though the defendant has filed a detailed counter in all the applications liled by the plaintiffs for attachment before judgment, the Court below has not considered the same and passed slipshod orders for attachment before judgment. Thus, such order without referring to the facts of the case, averrnents in the counter, assigning any reasons as to the satisfaction of the Court about tlte pima facie^case of the plaintiffs is illegal. In fact, before passing such order of attachment before judgment, Court shouid give assign reasons as to why the Court has pima facie satisfied and that how it rs a fit case for ordening attachment before judgment. Such satisfaction must be arrived by the Court with reference to necessa_ry material piaced before the court by the respective parties. Therefore, viewed from any algle, such a slipshod order passed by the trial Court without considering the riva.l contentions and without referring to the satisfaction as to the existence of prtma facie case is iiable to be set aside.

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AVRJ CRP Nos.l066, 642, 683 & 1058 of202l

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Be it stated that thus, the Court before ordering attachment should be satislied by cogent evidence that the defendant is about to alienate the properties and a_lso that the said alienation is only attempted to delay or to defeat the decree that may be passed against him. Any such order based on the affidavits filed on behalf of the plaintiffs, without giving particulars of the attempts alleged to have been made and without disclosing source of knowledge is not sustainable. But in the case on hand, no such details are either mentioned in the affidavit filed by the plaintiffs in support of the applications or such satisfaction is recorded by the court below before passing the orders impugned.

¶154

2L. In fact, the trial Court has passed one line cryptic slipshod order without recording its satisfaction as to the pima face case made out by the plaintiffs about any attempts by the defendant to alienate the suit schedule properties. In that view of the matter, I find that the orders impugned are not sustainable, liable to be set aside and

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¶157

AVRJ CRP Nos. t066, 642. 683 & I058 of202 t the Court below has committed jurisdictional error in passing the said orders.

¶158

¶159

,c In the result, the Civil Revision petition Nos. 1066, 642, 683 and 1058 of 2O2l are a]lowed. The impugned orders in I.A.No.2S9 of 2027 in O.S.No.32 of 2021 dated 23.O4.202L, orders in IA No. t2 of 2021 in OS No.41 of 2020, dated 2S.O2.2O2l and orders in IA No. iOO of 2O2t tn OS No. t4 of 2021 dated 02.03 .2021 and orders in IA No.291 of 2O2t in OS No.33 of 2OZt, datea 28.04.2021 respectively on the file of the learned XII Additional District & Sessions Judge, Ranga Reddy at Vikarabad are hereby set aside. All the above IAs are remitted to the trial Court for fresh consideration in accordance with the principles laid by a Division Bench of this Court 1n Mandq.la Suryanaragana t case (9,h supra) and Rrrman ?ech,s case (lst supra). The learned trial Judge directed to dispose of the above said IAs within three months from the date of recetpt of a copy of this order. However, in the clrcumstances of these cases, there shall be no order as to costs.

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AVRJ CRP Nos.l066, 642, 683 & 1058 of 2021

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