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2005 DIGILAW 663 (MAD)

Jayasheela & Another v. Mony

2005-04-16

R.BANUMATHI

body2005
Judgment :- (Civil Revision Petition, under Sec.115 C.P.C against the order in I.A.No.666 of 2002 in O.S.No.377 of 2000 dated 07.10.2002 passed by the Principal District Munsif, Kuzhithurai, as stated therein.) This Civil Revision Petition is directed against the order of the Principal District Munsif, Kuzhithurai dated 07.10.2002 made in I.A.No.666 of 2002 in O.S.No.377 of 2000 allowing the Petition under Order 38 Rule 9 and Section 151 C.P.C and thereby raising Attachment of the Petition mentioned Properties except in Item No.1. The First Plaintiff – Jayasheela is the Wife of the Defendant. 2. The marriage between the First Plaintiff and the Defendant was solemnised as per Hindu rites and custom on 08.11.1992. After the marriage, the First Plaintiff and the Defendant were residing at the matrimonial house at Arumanai. Few months after the marriage, the Defendant was insisting for more dowry and jewels. Out of lawful wedlock, Second Plaintiff was born on 15.03.1994. After the birth of the Second Plaintiff, the Defendant did not take back the First Plaintiff. He was demanding more dowry and jewels to take back the First Plaintiff. At the intervention of the mediators, some time after the birth of the child, the Defendant had taken back the First Plaintiff. But, he was insisting the First Plaintiff to get her share from her family property. Demanding the property and more dowry, again on 25.09.1996, the Defendant had driven back the Plaintiff. He had also severely beaten the First Plaintiff, for which she has taken treatment in the Government Hospital, Arumanai. The Plaintiffs are unable to maintain themselves. Hence, the Plaintiffs have filed O.S.No.377 of 2000 claiming past maintenance of Rs.17,000/- (Rupees Seventeen Thousand only) and Rs.1000/-(Rupees One Thousand only) per month. 3. Resisting the Suit, the Defendant has filed the Written Statement. 4. I.A.No.1124 of 1996: - This Application was filed for Attachment Before Judgment of Six Items of Petition mentioned properties. On the Application, conditional order was passed to furnish security for Rs.29,000/-. Since the Defendant has not furnished the Security, Attachment of Six Items of Properties was ordered. Attachment Before Judgment was made absolute on 29.03.2000. No enquiry was conducted. The Defendant has not preferred any Appeal against the Order of Attachment being made absolute. 5. I.A.No.666 of 2002: - The Defendant has filed this Application for raising the Attachment. Since the Defendant has not furnished the Security, Attachment of Six Items of Properties was ordered. Attachment Before Judgment was made absolute on 29.03.2000. No enquiry was conducted. The Defendant has not preferred any Appeal against the Order of Attachment being made absolute. 5. I.A.No.666 of 2002: - The Defendant has filed this Application for raising the Attachment. In the Petition, the Defendant has alleged that his parents were aged and ailing and for their Medical Treatment and other expenses, he had raised money by way of loans through his Friends and Relatives and that he is heavily indebted. Further, the Defendant has pleaded that he is under obligation to clear the debts and that he has to raise loans from the Nationalised Banks on the Security of his properties and on those grounds urged for raising the Attachment. 6. The Plaintiffs have filed the Counter Statement, raising serious objections for raising the Attachment. In the Counter Statement, it has been contended that the Petition is without bonafide. It is further alleged that the Defendant has been attempting to alienate the house and to drive them away from that house. The Defendant has instituted the Suit in O.S.No.252 of 1997 in the name of his father to set aside the Gift Deed in his favour in respect of Suit Item Nos.1 to 3. That Suit had been filed behind the back of the Plaintiffs only to defeat the lawful claim of the Plaintiffs. On knowing about the same, the Plaintiffs impleaded themselves in the said Suit as additional Defendants 2 and 3. Further, the Defendant has also filed H.M.O.P.No.22 of 2000, seeking for Divorce imputing grave allegations against the Plaintiff. Contending that the Petition is lack of bonafide, the Plaintiffs prayed for dismissal of the Petition. 7. Learned District Munsif, Kuzhithurai allowed the Application under Order 38 Rule 9 and Sec.151 C.P.C on the ground that Item No.1 in S.No.167/9 – 15 cents and the house thereon alone would be sufficient to satisfy the maintenance claim of the Plaintiffs. Referring to the decision reported in 2002 (I) M.L.J. 756 , the Trial Court held that if the Attachment Before Judgment is ordered it would castigate the Defendant and hence care and circumspection is required for ordering Attachment Before Judgment. On those grounds, I.A.No.666 of 2002 was allowed raising the Attachment of the Petition mentioned Properties excepting Item No.1. 8. Referring to the decision reported in 2002 (I) M.L.J. 756 , the Trial Court held that if the Attachment Before Judgment is ordered it would castigate the Defendant and hence care and circumspection is required for ordering Attachment Before Judgment. On those grounds, I.A.No.666 of 2002 was allowed raising the Attachment of the Petition mentioned Properties excepting Item No.1. 8. Aggrieved over the allowing the Application under Order 38 Rule 9 and Sec.151 C.P.C, the Revision Petitioners / Plaintiffs have filed this Civil Revision Petition. The Defendant has been served; but has not entered appearance. The name of the Defendant is printed in the cause list. Heard the submissions of the learned counsel for the Revision Petitioners. 9. Assailing the order of the Trial Court, learned counsel for the Revision Petitioner has drawn the attention of the Court to the Order of the District Court, Nagercoil made in TR.O.P.No.120 of 2001, ordering the transfer of O.S.No.377 of 2000 to Sub-Court, Kuzhithurai for trying it along with the Matrimonial petition. Learned counsel for the Petitioners has further submitted that when the District Court made such an order of Transfer on 07.10.2002, learned District Munsif has no jurisdiction to deal with the Petition in I.A.No.666 of 2002. Submitting that I.A.No.697 of 2002 filed by the Plaintiffs on the same day i.e. On 07.10.2002 to re-open I.A.No.666 of 2002 was dismissed, learned counsel has submitted that the order made in I.A.No.666 of 2002 suffers from serious infirmity and cannot be sustained. It is further submitted that as contemplated under Order 38 Rule 9 C.P.C., when the Defendant has not furnished any security, the Trial Court was not correct in raising the Attachment before Judgment, which was made absolute by the order of the Court on 29.03.2000. 10. Upon consideration of the submissions of the Revision Petitioners and the other materials on record, the point that arises for consideration in this Revision Petition is: When the conditions in Order 38 Rule 9 C.P.C in furnishing the security for raising the Attachment are not complied with, whether the Trial Court was right in raising the Attachment Before Judgment in respect of the Petition mentioned Properties, excepting Item No.1. 11. To appreciate the contentious points urged, it is relevant to refer to certain other proceedings between the parties. 12. 11. To appreciate the contentious points urged, it is relevant to refer to certain other proceedings between the parties. 12. H.M.O.P.No.22 of 2000:- The Defendant has filed this Matrimonial Petition for Divorce on the file of Sub-Court, Kuzhithurai. 13. Tr.O.P.No.120 of 2001:- This Transfer Petition was filed by the Plaintiffs on the file of District Court, Nagercoil for transfer of O.S.No.377 of 2000 from the file of District Munsif Court, Kuzhithurai to the Sub-Court, Kuzhithurai for trying it along with H.M.O.P.No.22 of 2000. On 04.10.2002, the Transfer Petition was allowed, ordering Transfer of O.S.No.377 of 2000 to the file of Sub-Court, Kuzhithurai. On 07.10.2002, I.A.No.697 of 2002 was filed by the Plaintiffs to re-open I.A.No.666 of 2002, but the same has not been considered and the on the same date i.e., on 07.10.2002, the Impugned Order was passed. 14. O.S.No.252 of 1997:- It is also to be noted that the Defendant has filed O.S.No.252 of 1997 in the name of his Father to set aside the Gift Deed in his favour in respect of Suit Item Nos.1 to 3. Knowing about the filing of the Suit, the Plaintiffs got themselves impleaded in that suit as additional Defendants 2 and 3. 15. In I.A.No.666 of 2002, initially Attachment Before Judgment was ordered in respect of Suit Item Nos.1 to 6. Attachment Before Judgment was made absolute on 29.03.2000. By the Impugned Order, the Attachment was raised in respect of Items Nos.2 to 5 – landed immoveable properties. Attachment Before Judgment was confirmed only with regard to Item No.1 – 15 cents in S.No.167/9 and the Residential house thereon. Though the Court has raised the Attachment regarding Item Nos. 2 to 5, it was also held that the Petitioner shall not alienate the Petition mentioned Schedule Properties till the disposal of the Suit. Inspite of such direction not to alienate the schedule Properties, it is stated that the Defendant has sold two items of properties. 16. Order 38 Rule 9 C.P.C deals with "Removal of Attachment when Security Furnished or suit Dismissed", which is as follows: - "....Where an order is made for Attachment Before Judgment, the Court shall order the Attachment to be withdrawn when the Defendant furnishes the Security required, together with security for the costs of the Attachment, or when the Suit is dismissed...." 17. In paragraph 6 of the Impugned Order, it is stated that the Petitioner / Husband is ready to furnish the Security. No security has been furnished before passing the Impugned Order raising Attachment in respect of Suit Item Nos.2 to 5. The conditions in Order 38 Rule 9 C.P.C have not been complied with. But, inspite of the non-compliance of the conditions, Attachment Before Judgment was raised in respect of Item Nos.2 to 6. It is stated in the impugned order that the Order of Attachment was made absolute and no enquiry was conducted. Whether the Attachment Order was made absolute after enquiry or without enquiry, the fact remains that the Attachment was made absolute on 29.03.2000. Without furnishing the security, as contemplated under Order 38 Rule 9 C.P.C., the Trial Court was not right in raising the Order of Attachment. 18. In the suit, past maintenance of Rs.17,000/- and Future Maintenance of Rs.1000/- per month is claimed. In case, if the Plaintiffs succeed, the Defendant would be liable not only for the Past Maintenance, but also for the Future Maintenance at the rate which the Court orders. Under such circumstances, Item No.1 – 15 Cents and the Residential House thereon cannot be said to be sufficient to satisfy the Decree. This is all the more so when no materials have been produced showing that the value of Item No.1 is much higher. Attachment Before Judgment can be effected when the Court is satisfied that - (i) the Defendant is about to dispose of the Property or (ii) that the Defendant is intending to do so with a view to cause obstruction or (iii) delaying execution of any decree that may be passed against the Defendant. These conditions seem to squarely apply to the case in hand. The Defendant sought for raising of Attachment on the ground of raising the loan from nationalised bank by offering the Suit Properties as security. On such plea raised by the Defendant, the Trial Court has raised the order of Attachment; further directing the Defendant not to alienate the Suit Items. But, after obtaining the order of removal of Attachment, the Defendant is said to have alienated two Items of Properties. Perhaps, with a view to causing obstruction to the execution of any maintenance decree, which may be passed against him. But, after obtaining the order of removal of Attachment, the Defendant is said to have alienated two Items of Properties. Perhaps, with a view to causing obstruction to the execution of any maintenance decree, which may be passed against him. Further, it is relevant to note that the Defendant is also said to have filed O.S.No.252 of 1997 in the name of his Father to set aside the Gift Deed regarding Item Nos.1 to 3. The conduct of the Defendant prima facie shows that his intention is to defeat the maintenance claim of the Plaintiff by delaying the execution of the decree, which may be passed against him. Learned District Munsif ought to have taken note of the strained relationship of the parties. Learned District Munsif erred in not taking note of the conduct of the Defendant. Even when no security was furnished for raising the Attachment as contemplated under Order 38 Rule 9 C.P.C, learned District Munsif erred in raising the order of Attachment. The Impugned Order suffers from serious error and cannot be sustained. Hence, the order in I.A.No.666 of 2002 in O.S.No.377 of 2000 is to be set aside. 19. Therefore, the order in I.A.No.666 of 2002 in O.S.No.377 of 2000 dated 07.10.2002 passed by the Principal District Munsif, Kuzhithurai, allowing the Petition filed under Order 38 Rule 9 and Sec.151 C.P.C is set aside and this Civil Revision Petition is allowed. The order made in I.A.No.1124 of 1996 in which Attachment Before Judgment was made absolute shall hold good. Further, it is made clear that the order in this Revision Petition would not affect the right of the Third Parties, who are said to have purchased two items of the Properties after the order made in I.A.No.666 of 2002 (Order 38 Rule 10 C.P.C). In the circumstances of the case, there is no order as to costs.