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2010 DIGILAW 5182 (MAD)

S. G. Manickasivam v. K. Ganesan

2010-11-26

R.S.RAMANATHAN

body2010
Judgment :- 1. The plaintiff in O.S.No.153 of 2010 on the file of the Sub Court, Erode is the revision petitioner. 2. The above suit was filed by the plaintiff for recovery of a sum of Rs.5,50,000/= on the basis of two cheques issued by the defendant. The plaintiff also filed I.A.No.710 of 2010 under Order 38 Rule 5 and 6 for attachment before judgment of the three items of the properties mentioned in the petition and that application was dismissed and as a consequence, this revision is filed. 3. It is submitted by the learned counsel appearing for the revision petitioner that necessary allegations were made in the affidavit for ordering attachment and without appreciating the allegations made in the affidavit, the court below rejected the application on the ground that items 2 and 3 of the properties do not belong to the defendant/respondent herein and in respect of item 1 of the properties, already action has been initiated under section 13(2) of the SARFAESI Act and the bank has initiated proceedings under section 13(4) of the Act and took possession of the property and therefore, the application is not maintainable. The court below also held that vague allegations were made and no specific instances were stated to substantiate the allegations. 4. On the other hand, learned counsel appearing for the respondent submitted that the revision filed by the revision petitioner is not maintainable and under Order 43 Rule 1(q), any order passed under Order 38 Rule 6 is appealable and the petition was filed by the revision petitioner under Order 38 Rules 5 and 6 and it was rejected and hence, no appeal lies and therefore, the revision is not maintainable. In support of this contention, he relied upon the judgment of this Honourable Court made in DURAISAMY v. R.RAMANATHAN ((2002) 5 CTC 82. 5. The learned counsel further submitted that this court has deprecated the practice of ordering attachment before judgment by simply reproducing the words in the order and without proof of such allegation, the court cannot grant any such order and considering the allegation, the court below rightly dismissed the application stating that the allegations made by the revision petitioner were not substantiated. In support of his contention, he relied upon the following decisions:-1) VIJAYAVEL, V. v. TAMIL NADU MERCANTILE BANK LIMITED ( (2005) 2 MLJ 417 ) 2) GOPAUL ENVELOPES v. SANTI CORPORATION ( (2010) 1 MLJ 919 ) 3) SRI PANDURANGA BRICK WORKS v. GURURAGAVENDRA FOUNDATIONS PVT. LTD. ( (2007) 4 MLJ 863 ) 6. The learned counsel for the revision petitioner submitted that the order was not passed under Order 38 Rule 6 and that Order 38 Rule 6 will come into operation when an order has been passed under Order 38 Rule 5 directing the defendant to show cause why he should not be directed to furnish security and when the defendant fails to show cause or furnish security required, the court may pass an order attaching the property or in the event of furnishing security, the court shall order the attachment already made to be withdrawn and only in respect of those orders, the appeal can be filed and in this case, no conditional order was passed and hence, the order passed by the court below will not come under the scope of order under Order 38 Rule 6 and hence, it is not appealable. He also relied upon the decision of this court in PILLAI, R.S. v. M.L.PERACHI @ SELVI ( 2000 (IV) CTC 543 ). 7. In this case, admittedly, no conditional order was passed by the court below directing the respondent herein to furnish security and thereafter, he failed to give such security or the respondent has furnished security and on that basis an attachment already granted was withdrawn. The revision petitioner filed application for attachment before judgment and that was dismissed and hence, it will not come under the scope of Order 38 Rule 6. Further, the Division Bench of this court, in the decision reported in 2000 (IV) CTC 543 (cited supra), after elaborately considering various judgments of various High Court, held that in the absence of any order of interim attachment and the application filed by the petitioner for attachment before judgment was dismissed, such order is not appealable and is only revisable. Further, under Order 38 Rule 5(4), if any attachment order is passed without complying with the provisions of sub rule (1) viz., ordering security to be furnished, such attachment shall be void. Further, under Order 38 Rule 5(4), if any attachment order is passed without complying with the provisions of sub rule (1) viz., ordering security to be furnished, such attachment shall be void. Hence, the contention of the learned counsel appearing for the respondent that the revision is not maintainable, cannot be accepted. 8. The learned Judge relying upon the judgment in T.R.PUNNAVANAM v. V.MUTHUSWAMI (AIR 1962 MADRAS 444), held that against the order passed under Order 38 Rul5, revision is not maintainable and it is an appealable order. In that case, an interim order of attachment was passed and the defendant was asked to show cause as to why he should not be directed to furnish security. The defendant, filing counter showing cause, made a prayer requesting the court to release the property from interim attachment and that prayer was rejected by the court and in that circumstances, the court held that the order passed under Order 38 Rule 6 is an appealable one. But, the facts of the case on hand are different and as already held, an interim order of attachment was passed and notice was issued to the defendant and the case of the plaintiff was not accepted and the application filed by the plaintiff was rejected. Hence, it will not come under the scope of Order 38 Rule 6 and it is not an appealable order. 9. As regards the contention of the learned counsel for the respondent that no sufficient proof has been filed by the revision petitioner for passing order under Order 38 Rule 5, in the affidavit filed in support of the petition, the revision petitioner has quoted the provision under Order 38 Rule5. In the judgment reported in ( (2010) 1 MLJ 919 ), this court, relying upon the judgment in V.K.NATARAJA GOUNDER v. S.A.BANGARU REDDIAR (AIR 1965 MADRAS 212), held as follows:-"A verbatim copy of the provisions of the Code in the affidavit in support of the application, or a mechanical repetition of the language of the Code without an iota or substratum of truth underlying the allegation, would be merely colourable and would constitute an abuse of process of Court. The Court must insist upon strict proof of the said allegations. Any order of the Court without a proper investigation whether the allegations are well-founded or not, would constitute a gross dereliction of duty." 10. The Court must insist upon strict proof of the said allegations. Any order of the Court without a proper investigation whether the allegations are well-founded or not, would constitute a gross dereliction of duty." 10. In the judgments in VIJAYAVEL, V. v. TAMIL NADU MERCANTILE LIMITED ( (2005) 2 MLJ 417 and SRI PANDURANGA BRICK WORKS v. GURURAGAVENDRA FOUNDATIONS PVT. LTD. ( (2007)4 MLJ 863 ), similar view was expressed by this court. Therefore, having regard to the judgments referred to above and the averments made in the affidavit, I am of the opinion that the allegations are not sufficient to warrant an order of attachment before judgment. 11. Therefore, considering the statement made in the counter affidavit filed by the respondent wherein it has been stated that the respondent has no intention of selling the first item of the properties, I do not find any merit in the revision petition and accordingly, it is dismissed. No costs. The connected miscellaneous petition is also dismissed.