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2004 DIGILAW 307 (MAD)

P. Madanagopal & Others v. N. Gangabavani

2004-02-27

K.GNANAPRAKASAM

body2004
Judgment :- 1.The revision petitioners are the defendants. 2.The respondent / plaintiff filed the suit for recovery of the money due under the Promissory Note and also filed an application under Order 38 Rule 5 and Section 151CPC to pass an order of conditional attachment of the property of the defendants before judgement and calling upon the defendants to furnish security within a time to be fixed by the court and in default, order attachment of the property. 3.The trial court in IA.No.235/2003 passed an order on 19.3.2003, which is as follows:- "Heard. Notice by 14.4.2003 and for furnishing security." The defendants have filed their counter in IA.No.235/2003, praying for the dismissal of the said application. 4.The defendants have also filed a separate application in IA.No.454/2003 to revoke the interim order passed by the trial court in IA.No.235/2003 dated 19.3.2003 and also filed IA.No.455/2003 to stay the interim order passed by the trial court. Both IA.Nos.454 and 455 of 2003 were heard together and were dismissed. Aggrieved by the same, the defendants have preferred this civil revision petition, as against the order passed in IA.No.454/2003. Heard the learned Advocate for the revision petitioners and the respondent. 5.The submissions made by the learned Advocate for the revision petitioners is three fold, viz. (1) The respondent/ plaintiff has not made out a prima facie case for ordering attachment, (2) The order passed by the trial court is not in conformity with the requirements of Order 38 Rule 5(1) CPC and (3) the notice sent was not in proper form as prescribed under the Civil Rules of Practice. (1) The respondent/ plaintiff has not made out a prima facie case for ordering attachment, (2) The order passed by the trial court is not in conformity with the requirements of Order 38 Rule 5(1) CPC and (3) the notice sent was not in proper form as prescribed under the Civil Rules of Practice. 6.Point No.(1): Order 38 Rule 5 CPC deals with 'Attachment before Judgement' and Order 38 Rule 5(1) states, "Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him:- (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and 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 security." Order 38 Rule 5(2) CPC states, " The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof." Order 38 Rule 5(3) states, "the court may also in the order direct the conditional attachment of the whole or any portion of the property so specified." Order 38 Rule 5(4) states, "The If an order of attachment is made without complying with the provisions of sub rule (1) of this rule, such attachment shall be void." 7.It is therefore, clear that Order 38 Rule 5(1) has got to be complied with in all its terms. Sub rule (1) prescribes certain conditions, for ordering attachment before judgement, viz. The court is satisfied by affidavit or otherwise, that (1) The defendant is about to dispose of the whole or any part of his property or (2) The defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. The court is satisfied by affidavit or otherwise, that (1) The defendant is about to dispose of the whole or any part of his property or (2) The defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. If either of these conditions is satisfied, then the court may direct (1) the defendant within a time to be fixed by it, either to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, (2) or such portion thereof as may be sufficient to satisfy the decree, (3) or to appear and show cause why he should not furnish security. 8.Now let us see the affidavit filed by the plaintiff, which is available at page 5 of the typed set of papers. Paragraph 4 of the affidavit reads, "I understand that the defendants are arranging to alienate their properties in order to defeat and delay my dues. I will be put to irreparable loss, if the defendants do so." The averments are sufficient to comply with Order 38 Rule 5(1)(a) and therefore, the 1st contention of the petitioners cannot be sustained. 9.Point No.(2):- The second contention of the learned Advocate for the revision petitioners is that the conditions as provided under Order 38 Rule 5(1) were not followed by the trial court. It is pointed out that the court had ordered both notice and also for furnishing security simultaneously and the same is not proper. As per the provision, the court could either direct the defendants, to furnish security in such sum as may be specified in the order, to produce and place at the disposal of the court..... or such portion thereof as may be sufficient to satisfy the decree OR to appear and show cause, why he should not furnish security. As such, it is clear that the court cannot order notice and for furnishing security simultaneously and therefore, the order passed is not proper and the objections raised by the petitioners is sustainable. 10.Point No.(3):- The third contention is that the notice sent to the defendants is not in proper form. As such, it is clear that the court cannot order notice and for furnishing security simultaneously and therefore, the order passed is not proper and the objections raised by the petitioners is sustainable. 10.Point No.(3):- The third contention is that the notice sent to the defendants is not in proper form. 11.Appendix F - Form 6A of CPC deals with notice under Order 38 Rule 5 CPC, which runs as follows:- To ............. ............. (defendant's name and address) "Whereas ...... the plaintiff has made the above application praying for an attachment before judgement of the property mentioned in the Schedule here under to answer any judgement that may be passed in his favour. Take notice that you ........ the defendant, are hereby directed on or before 1.to furnish security of a sum of Rs......... (Rupees only) 2.to produce and place at the disposal of the Court when required the entire property ..... /items of the property ......../the value of the entire property ......../the value of the items of the property ......... mentioned in the Schedule here under sufficient to satisfy the decree that may be passed in favour of the plaintiff. 3.to appear and show cause why you should not furnish security. Given under my hand and the seal of the court, this the ... day of ... 19..... Judge " This Form is available at page 72 of the typed set of papers. The notice sent by the plaintiff is available at page 12 of the typed set of papers. 12.As a matter of fact, this Form 6A was introduced by the amendment made by our High Court dated 28.10.1985. It appears that before the amendment made by this court, there was no proper form for Order 38 Rule 5 CPC. On going through the form, the court could order any one of three things, viz:- 1.to furnish security of a sum of Rs......... (Rupees only) 2.to produce and place at the disposal of the Court when required the entire property ..... /items of the property ......../the value of the entire property ......../the value of the items of the property ......... mentioned in the Schedule here under sufficient to satisfy the decree that may be passed in favour of the plaintiff. 3.to appear and show cause why you should not furnish security. /items of the property ......../the value of the entire property ......../the value of the items of the property ......... mentioned in the Schedule here under sufficient to satisfy the decree that may be passed in favour of the plaintiff. 3.to appear and show cause why you should not furnish security. 13.It is manifestly clear that (1) The court can direct the defendant to furnish security or (2) direct the defendant to produce and place at the disposal of the court, when required, the property or the value thereof, etc. (3) or direct the defendant to appear and show cause why the defendant should not furnish security. In the instant case, the order dated 19.3.2003 states, "Heard. Notice by 14.4.2003 and for furnishing security" The court had ordered notice and directed the defendant to furnish security. It is the contention of the petitioners that the said order is not the order expected to be passed under Order 38 Rule 5(1) CPC. 14.That in the notice sent to the defendant, which is available at page 12 of the typed set of papers, it is captioned as "Notice to Show Causes", it is stated, "Whereas the above named petitioner has made an application to this Court to furnish security. You are hereby wanted to appear in this court in person or by a pleader duly instructed on the 11th Day April of 2003 at 10 O'Clock in the forenoon to show cause against the application failing which the said application will be heard and determined exparte." On verifying the contents of the notice, it is not in the proper form, as prescribed under Form 6A. In order to direct the defendant to furnish security, the amount should have been shown, but, whereas no amount has been shown in the notice sent to the defendant. It is therefore evident that the notice sent to the defendant is not in proper form and the contention of the petitioner has got to be upheld. In order to direct the defendant to furnish security, the amount should have been shown, but, whereas no amount has been shown in the notice sent to the defendant. It is therefore evident that the notice sent to the defendant is not in proper form and the contention of the petitioner has got to be upheld. 15.But, however, the learned Advocate for the respondent / plaintiff would contend that pursuant to the notice sent to the defendant, the defendant had furnished security on 20.6.2003 and the same is available at page 54 of the typed set of papers, wherein, it is clearly stated, "Whereas at the instance of the plaintiff in the above suit, the defendants have been directed to furnish security for the suit claim, pending disposal of the suit in OS.No.109/2003. I, M.Vasantha, the second defendant, do hereby offer my property more fully described in the Schedule hereunder as security to the Honourable Principal Sub Judge, Chengalput, pending disposal of the suit in OS.No.109/2003." The defendant having furnished the security, subsequently, filed an application in the month of January 2003, questioning the validity of the order of attachment passed by the trial court and the same is not maintainable. 16.The main grievance of the revision petitioners is that the proper procedure was not adopted by the trial court, not only in passing orders, but also in sending the notice. As it has already been adverted to, the court has ordered "notice" and also directed the defendant to "furnish security". In obedience of the order passed by the trial court, the defendant also furnished security. Just because the defendants have furnished security, it will not take away or abridge their right to question the validity of the order in IA.No.235/2003. 17.Rule 6 of Order 38 speaks about when the attachment of the property shall be ordered, which states, " Where the defendant fails to show cause why he should not furnish security or fails to furnish security required within the time to be fixed by the court, the court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached." The above rule is so clear that an order of attachment should be passed by the court only when the defendant fails to show cause or to furnish security. 18.In the instant case, the court by order dated 19.3.2003, ordered notice and also directed the defendant to furnish security and no order of attachment was passed on that date. The defendant after having received the said order of the court had also furnished security, but, however, subsequently filed an application to revoke the said order. The various averments set forth in the affidavit filed in support of the application to revoke the order, is on merits about the liability, about which we are not concerned now. 19.What the learned Advocate for the revision petitioners contend before this court is, that the order of the trial court ordering notice and also to furnish security is bad under law, and so also the notice sent is not in the prescribed 'Form'. 20.The learned Advocate for the revision petitioners relied upon the case of N.Pappammal Vs. L.Chidambaram (1984-1-MLJ-148, which deals with the satisfaction of the court for the grant of attachment before judgement, and it is not relevant to our case, as no order of attachment was passed. 21.The learned Advocate for the revision petitioner has also relied upon the cases of M.V.rajasekaran Vs. Balagangadharan and another (1990-1-LW-38), M.Ravi Vs. R.Vasanthakumari (2002-4-LW-362), Rajender Singh Vs. Ramdhar Singh & Others (2002-4-LW-576) and A.S.Samivel Vs. K.Annamalai (2003-4-LW-283). All these judgements are in respect of the satisfaction of the court before ordering attachment and the said situation has not arisen in this case and hence, they are not relevant to the case on hand. 22.Out of three submissions made by the revision petitioners, they succeed on Point Nos.(2) and (3) and therefore, the civil revision petition is allowed and the order passed in IA.No.235/2003 dated 19.3.2003 is set aside. 23.But, however, it is open to the plaintiff to file a fresh application as and when cause arises and in that event, the said application shall be disposed of by the trial court, in accordance with law.