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2008 DIGILAW 578 (AP)

Vantaru Chinna Subba Rayudu v. Y. Lalitha Vani

2008-07-29

P.S.NARAYANA

body2008
ORDER The Civil Revision Petition is filed by the revision petitioner aggrieved by an order made in I.A.No.93/2008 in O.S.No.34/2008 on the file of the Vacation Civil Judge, City Civil Court, Hyderabad where under the petitioner was given notice with a further direction to furnish security for a sum of Rs.12,32,000/-within a period of seven days from the date of receipt of notice, to produce and place at the disposal of the Court when required the entire property mentioned in the schedule hereunder sufficient to satisfy the decree that may be passed in favour of the petitioner - plaintiff. The respondent herein - the plaintiff in the suit instituted the suit for recovery of money and also filed an applicationI.A.No.93/2008 in O.S.No.34/08 on the file of the Vacation Civil Judge, City Civil Court, Hyderabad under Order 38 Rule 5 of the Code of Civil Procedure praying for conditional attachment. The certified copy of the third party affidavit of B.V. Ramana Rao is placed before this Court and no doubt it is shown as O.S.No.274/2008 in the said third party affidavit. But, however, it is shown as in the Court of the Hon'ble Chief Judge, City Civil Court, Hyderabad. 2. This Court on 21-5-2008 while admitting the Civil Revision Petition, inC.R.P.M.P.No.2734/2008 made the following Order:- "Aggrieved by the order of conditional attachment before Judgment passed in I.A.No.93/2008 in O.S.No.34/2008 on the file of the Vacation Civil Judge, City Civil Court, Hyderabad dated 15-5-2008, the present revision is filed. Learned Counsel appearing on behalf of the petitioner would state that except a bare reproduction of the contents of Order 38 Rule 5 C.P.C. no third party affidavits or any other material have been placed before the Court to enable the Court to arrive at the satisfaction that the defendant was intending to remove the property from the local limits of the jurisdiction of the Court. The learned Counsel has also placed reliance on K. Mallesh Mudraj v. C. Sudhakar (2007)4) ALD 369) wherein this Court, while taking note of the fact that except the averments made in the affidavit filed in support of the application, no third party affidavits or any other material had been placed before the Court, held that it was not sufficient compliance with the requirements of Order 38 Rule 5 of C.P.C. and directed maintenance of status quo. Hence, status quo as on today shall be maintained for a period of four weeks. Learned Counsel for the petitioner is permitted to take out notice on the respondents by registered post with acknowledgment due and filed proof of service. Post on 11-6-2008."The interim order made by this Court is being extended from time to time. On 16-7-2008 this Court made the following order:-"This Court on 21-5-2008 had recorded the submission made by the Counsel for revision petitioner that no third party affidavits or any other material had been placed before this Court and despite the same, an order was made. Sri Vasudeva Reddy, representing Sri B. Ravinder Reddy, learned Counsel for the respondent, had placed the certified copy of the third party affidavit filed before the learned Chief Judge, City Civil Court, Hyderabad. Sri B. Venkatadri, learned Counsel for the petitioner, requests time to verify the same. List the matter on 21-7-2008." 3. Sri R. Prabhakar representing Sri Venkatadri, the learned Counsel representing revision petitioner, in all thoroughness had taken this Court through several factual controversies and also under what circumstances the promissory note in question dt.18-5-2005 came into existence and how the same cannot be enforced. Incidentally, the learned Counsel also would maintain that none of the ingredients of Order 38 Rule 5 of the Code of Civil Procedure had been satisfied. Further, the learned Counsel also had pointed out that for reasons best known, conveniently the Vacation Civil Judge, City Civil Court, Hyderabad had been chosen for instituting the suit though this Court has no jurisdiction at all to entertain the suit, even in the light of the averments made in the plaint, either on the ground of cause of action or on the ground of the execution of the promissory note as well. The Counsel also would maintain that this third party affidavit initially had not been filed along with the suit but the same had been filed subsequent thereto and it is an after thought, in such a matter making an order directing the revision petitioner to furnish security, no doubt, while issuing notice may not be just and proper, it would have been just and proper on the part of the learned Judge to issue notice giving sufficient opportunity to explain his stand and to make an appropriate order in this regard in the light of the peculiar facts. The learned Counsel also relied on certain decisions to substantiate his submissions. 4. On the contrary, Sri Vasudeva Reddy, representing Sri Ravinder Reddy, the learned Counsel representing respondent-plaintiff would maintain that it is just a notice where a direction had been given to furnish security and in fact, the I. A. stood posted to 20-6-2008, instead of approaching this Court by way of revision, the revision petitioner could have approached the self-same Court explaining the same stand. The Counsel also had placed the certified copy of the third party affidavit filed along with the application and would maintain that on the representation made that no third party affidavits or supporting affidavits had been filed, an interim order had been obtained from this Court and hence, in any view of the matter, the Civil Revision Petition is not bona fide. Further, the learned Counsel also would maintain that the merits and demerits of the matter, the enforceability or otherwise of the promissory note, these questions may not be gone into at this stage and inasmuch as the Court of first instance was satisfied with the material available on record and prima facie, ingredients of Order 38 Rule 5 of the Code of Civil Procedure had been satisfied, such order had been made and the impugned order does not suffer from any illegality and hence the Civil Revision Petition is liable to be dismissed. 5. Several of the facts narrated by the respective Counsel representing the parties and the respective stands taken by the parties need not be gone into in elaboration at this stage since these are aspects which may have to be decided at the time of final disposal of the suit. No doubt, incidentally, these questions also may have to be gone into at the stage of ordering attachment before Judgment or passing any appropriate order under Order 38 Rule 5 of the Code of Civil Procedure. The Counsel for revision petitioner placed reliance on the decision of Division Bench of this Court in SURENDER SINGH BAJAJ v. KITTY STEELS LIMITED wherein the Division Bench at para 10 observed as hereunder:- "Since we hold that the application filed by the plaintiffs under Order 38Rule 5 C.P.C. in this case is maintainable, the next question to be considered is whether in allowing the application, the Court below acted legally or not? It is well settled that an order under Order 38, Rule 5 C.P.C. should not be passed merely for the sake of asking or merely because of the fact that the garnishee has huge sum of money payable to the defendant. The law in this regard were discussed by this Court in Sripathi Panditarajula Venkanna Babu v. Varalakshmi Finance Corporation, Rajahmundry, 1996 (4) ALD 453 (DB), wherein the steps necessary to be taken before an order is passed were clearly discussed and laid down. Further a Division Bench of this Court in Chairman and Managing Director, R.P.N. Nigam Limited, New Delhi v. Rambachane Singh, AIR 1998 AP 127 , dealing with necessary conditions for ordering an application filed under Order38, Rule 5, C.P.C. was pleased to hold:"............. Such an order is not to be passed in a routine manner merely for the asking for it but that the Court has to be satisfied on tangible materials placed before it that there are attempt at alienation and that the steps are taken so as to delay or obstruct the Judgment that may be ultimately passed against the defendant. Before passing an order, the defendant is first of all to be called upon to furnish security in the shape of specific sum to produce and place at the disposal of the Court when required, the property specified by the plaintiff in his petition or such portion of it as may be sufficient to satisfy the decree or call upon him to show-cause as to why he shall not furnish security. But such an order can be passed only after the primary satisfaction of the obstructive conduct of the defendant. The ultimate attachment order can be passed only if the defendant either fails to show-cause why the security shall not be furnished or fails to furnish the security as required..........."The only allegation made by the plaintiffs in the affidavit filed in support of the application is that the defendant No.2 is "now trying to leave beyond the jurisdiction of the Court" and that "he is attempting to withdraw the money deposited with the defendant No.2 and if the attachment before Judgment is not granted it would be very difficult for the plaintiffs to recover their dues from the defendant No.1." That is the only allegation in the affidavit. Therefore, the question to be considered is whether the above allegation of the plaintiffs could constitute necessary conditions precedent to order an application under Order 38, Rule 5, C.P.C. The above circumstance stated by the plaintiffs in the affidavit, even if true, in itself, in my considered opinion is not sufficient to pass an order under Order 38, Rule 5, C.P.C. unless it is also pleaded that by the impugned conduct of the defendant No.1, he was intending to delay the execution of the decree that may be passed by the Court against him. The satisfaction of the Court that the defendant with an intention to obstruct or delay the execution of the decree that may be passed by it, is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, is sine qua non for exercising the power under Order 38, Rule 5. This condition is totally absent in the instant case. In the impugned order, nowhere the Court below has recorded such satisfaction. In that view of the matter, the Court below ought not to have ordered the application filed by the plaintiffs under Order 38, Rule 5 C.P.C. "The Counsel also placed strong reliance on the decision of this Court in K.MALLESH MUDIRAJ v. C.SUDHAKAR2 wherein this Court at paras 10 observed as hereunder:- "It is, however, brought to the notice of this Court that except the averments made in the affidavit filed in support of the application no other third-party affidavits or any other material had been placed before the Court. Apart from this aspect of the matter, the reasons, which had been recorded in paras 6 and 7 appear to be just reproduction of the languge of the provisions specified supra. The learned Judge may have to appreciate all the facts and circumstances of the case and may have to arrive at a conclusion." 6. There cannot be any dispute or quarrel relating to the proposition that attachment before Judgment under Order 38 Rule 5 C.P.C. cannot be ordered for mere asking and prima facie the Court should be satisfied about the prima facie case. Here is a case where only a direction relating to furnishing of security had been directed while ordering notice and a date had been fixed. Here is a case where only a direction relating to furnishing of security had been directed while ordering notice and a date had been fixed. Be that a sit may, without expressing any further opinion relating to the other contentions which had been advanced by the learned Counsel representing the parties on record, inasmuch as, this Court made an interim order and the said interim order of status quo had been in force for sufficiently a long time and even while issuing notice, the learned Judge fixed a date, in view of the peculiar facts, the impugned order is hereby set aside and the matter is remitted the learned Chief Judge, City Civil Court, Hyderabad, to give opportunity to both the parties to advance submissions and make appropriate order in this regard. It is made clear that this order made by this Court need not be taken as an order touching either the merits or demerits, in deciding the application. 7. Accordingly, the Civil Revision Petition is allowed to the extent indicated above. However, Sri Vasudeva Reddy states that there is urgency for the disposal of the application. Hence, let the learned Judge dispose of the application by making appropriate orders in the light of the material which maybe placed by both the parties within a period of one month from the date of receipt of a copy of this order. No costs.