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Madras High Court · body

2013 DIGILAW 45 (MAD)

V. Arumugam v. J. Sathish Kumar

2013-01-03

G.RAJASURIA

body2013
Judgment 1. Heard both the sides. The epitome and the long and short of the germane facts absolutely necessary for the disposal of this Civil Revision Petition would run thus: The learned counsel for the revision petitioner would air the grievance of her client to the effect that the Lower Court passed a cryptic order whereby the revision petitioner was directed to furnish security and the order does not adhere to the ingredients as contained in Order 38 Rule 5 of CPC. 2. Whereas, the learned counsel for the first respondent / plaintiff would submit that whatever be the grievance of the revision petitioner / first defendant, the impugned order being an appealable one, invoking Order 43 Rule 1 of CPC, only C.M.A. should have been filed and not this revision. 3. No doubt, Order 38 Rules 5 and 6 of CPC, if read together, it will be quite obvious that the Court is enjoined to adhere to certain procedures as under:- Order 38 Rule 5 of the Code of Civil Procedure: Attachment before judgment "5. Where defendant may be called upon to furnish security for production of property.- (1) 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. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified, (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void." * * * * * Order 38 Rule 6 of the Code of Civil Procedure: "6. Attachment where cause not shown or security not furnished.- (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time 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. (2) Where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it thinks fit.” * * * * * Appendix: F Form No.6: No.6 SECURITY FOR THE PRODUCTION OF PROPERTY (O.38, r.5) (Title) Whereas at the instance of ........, the plaintiff in the above suit, ........... the defendant has been directed by the Court to furnish security in the sum of Rs......... to produce and place at the disposal of the Court the property specified in the schedule hereunto annexed; Therefore I ......... have voluntarily become surety and do hereby bind myself, my heirs and executors, to the said Court that the said defendant shall produce and place at the disposal of the Court, when required, the property specified in the said schedule, or the value of the same, or such portion thereof as may be sufficient to satisfy the decree; and in default of his so doing I bind myself, my heirs and executors, to pay to the said Court, at its order, the said sum of Rs...... or such sum not exceeding the said sum as the said Court may adjudge. Schedule Witness my hand at ........... this ........... day of ...... 19............. Witnesses (Signed) * * * * * Form No.6-A: No.6-A Notice (O.38, r.5) (Title) To ......... ......... (Defendant's name and address) Whereas ......... or such sum not exceeding the said sum as the said Court may adjudge. Schedule Witness my hand at ........... this ........... day of ...... 19............. Witnesses (Signed) * * * * * Form No.6-A: No.6-A Notice (O.38, r.5) (Title) To ......... ......... (Defendant's name and address) Whereas ......... the plaintiff has made the above application praying for an attachment before judgment of the property mentioned in the Schedule hereunder to answer any judgment 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 hereunder 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 The Schedule * * * * * Form No.7: No.7 ATTACHMENT BEFORE JUDGMENT, ON PROOF OF FAILURE TO FURNISH SECURITY (O.38, r.6) (Title) To The Bailiff of the Court. Whereas ........., the plaintiff in this suit, has applied to the Court to call upon..........., the defendant, to furnish security to fulfil any decree that may be passed against him in the suit, and whereas the Court has called upon the said ........ to furnish such security, which he has failed to do; These are to command you to attach ........, the property of the said ..........., and keep the same under safe and secure custody until the further order of the Court, and you are further commanded to return this warrant on or before the .......... day of ...........19........., with an endorsement certifying the date on which and the manner in which it has been executed, or the reason why it has not been executed. Given under my hand and the seal of the Court, this the ........ day of ..... 19........ day of ...........19........., with an endorsement certifying the date on which and the manner in which it has been executed, or the reason why it has not been executed. Given under my hand and the seal of the Court, this the ........ day of ..... 19........ Judge * * * * * Form No.7-A: No.7-A Attachment of immovable property before Judgment (Title) To (Defendant) Whereas on the application of the plaintiff in this suit, the Court called upon you, the defendant to furnish security to fulfil any decree that may be passed against you in the suit or to show cause why you should not furnish such security and .......... you have failed to show cause why you should not furnish such security/............ you have failed to furnish security required within the time fixed by the Court, it is ordered that you, the said .......... be, and you are, hereby prohibited and restrained until the further order of this Court, from transferring or charging the properties described in the schedule hereto annexed by sale, gift or otherwise and that all persons be, and that they are hereby prohibited and restrained from receiving the same by purchase, gift or otherwise. Given under my hand and the seal of the Court, this the ........ day of ..... 19........ Schedule * * * * * 4. A mere running of the eye over the above precedents would indicate and exemplify that the impugned order in the light of the law found enunciated in those precedents, can never be dignified with the status of a legal order. Accordingly, it is liable to be set aside. As such, the matter is remitted back to the Trial Court for hearing both the sides and render a reasoned order keeping in mind the ingredients as found embedded in Order 38 Rule 5 of CPC. If the revision petitioner is aggrieved by any such reasoned order that would be passed by the Lower Court, it is open for him to prefer an appeal by invoking Order 43 Rule 1 of CPC. The Lower Court shall do well to see that the I.A. is disposed of within a period of one month from the date of receipt of a copy of this order. 5. The Civil Revision Petition is disposed of accordingly. Consequently, the connected miscellaneous petition is closed. No costs.