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2013 DIGILAW 56 (MAD)

Ansari v. M. Thavamani

2013-01-03

G.RAJASURIA

body2013
Judgment :- 1. This Civil Revision Petition has been filed to get set aside the fair and decreetal order dated 10.08.2012 passed in I.A.No.217 of 2012 in O.S.No.49 of 2012, on the file of the Sub Court, Ramanathapuram. 2. Heard both sides. 3. The epitome and the long and short of the relevant facts absolutely necessary for the disposal of this Civil Revision Petition would run thus: The learned Counsel for the revision petitioner would echo the cri de coeur and heart burns of his client to the effect that the first respondent who is an Advocate by profession, filed the suit in O.S.No.49 of 2012 for recovery of a huge sum towards his fees and he also filed I.A.No.217 of 2012 for attaching the land acquisition compensation amount lying with the Court concerned; whereupon, the lower Court passed an order which is reproduced hereunder for ready reference: “TAMIL” 4. Being aggrieved by and dissatisfied with the same, this Civil Revision Petition has been filed by the defendant on various grounds. 5. According to the learned Counsel for the revision petitioner, the very suit itself is not maintainable and over and above that, the L.A.O.P., compensation amount due payable in favour of the revision petitioner cannot be attached and before passing such attachment order, the question of calling upon the defendant to furnish security, is a well-neigh impossibility. As such, quashment of such order is required. 6. Whereas the learned Counsel for the first respondent/plaintiff would impugn and challenge the pleas and arguments as put forth on the side of the revision petitioner and develop his arguments to the effect that when the suit is pending before the lower Court, it has got jurisdiction to call upon the defendant to furnish security as otherwise, if any decree is passed, that would become inexecutable. 7. The point for consideration is as to whether there is any illegality in the order passed by the lower Court? The Point: 8. I would like to recall and recollect Order 38 Rule 5 of the Code of Civil Procedure and the relevant Forms appended to therein, which are extracted hereunder for ready reference: Order 38 Rule 5 of the Code of Civil Procedure: Attachment before judgment "5. The Point: 8. I would like to recall and recollect Order 38 Rule 5 of the Code of Civil Procedure and the relevant Forms appended to therein, which are extracted hereunder for ready reference: 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. (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." * * * * * 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 ......... 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) 1. 2. * * * * * 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 ........ 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........ 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 * * * * * 9. I would like to highlight and spotlight the fact that once the revision petitioner/defendant is in receipt of such communication of that order or notice calling upon the revision petitioner/defendant to furnish security, it is open for him to give a detailed explanation as to how he was not bound to furnish security. Whereupon the Court is enjoined to hear both sides and pass orders. Whereupon the Court is enjoined to hear both sides and pass orders. If any such order is passed against the revision petitioner/defendant, it is open for him to prefer a Civil Miscellaneous Appeal before the appellate forum concerned under Order 43 Rule 1 (q) of the Code of Civil Procedure. 10. In this case, when this Court raised a query as to whether in respect of such calling for security to be furnished by the revision petitioner/defendant, any objection or explanation was filed, the learned Counsel for the revision petitioner would submit that a counter affidavit was filed and that a separate I.A., was also filed for praying time to furnish security. 11. A mere running of the eye over the order passed by the lower Court as extracted supra, would demonstrate and display that it is a cryptic order. Such an order is not tenable under the law for the reason that once an application under Order 38 Rule 5 of the Code of Civil Procedure, is filed by the plaintiff, then the defendant should have been called upon to show cause why he should not furnish security. Whereupon the defendant would be at liberty to furnish his explanation as to why he is not liable to furnish any such security and thereafter only, the order has to be passed by the Court. 12. Here, the above excerpt of the impugned order, would demonstrate and display that without any application of mind, the lower Court simply passed such a cryptic order. 13. The learned Counsel for the revision petitioner/defendant would submit that he filed the counter affidavit to the application filed by the first respondent/decree holder/plaintiff, but absolutely there is no reference to it and hence, the procedure followed by the lower Court is not tenable. 14. The learned Counsel for the revision petitioner/defendant would rely on the following decisions: (i) Sasidharan v. Chenthamara reported in (1992) 2 MLJ 459 . (ii) A.S. Samivel v. K. Annamalai reported in (2003) 3 MLJ 703 . (iii) Raman Tech & Process Engg. Co and anther v. Solanki Traders reported in(2008) 2 MLJ 1058 (SC). (iv) M.K. Hariprasad & another v. Uma Keshav reported in2009-5-L.W. 510. 15. (ii) A.S. Samivel v. K. Annamalai reported in (2003) 3 MLJ 703 . (iii) Raman Tech & Process Engg. Co and anther v. Solanki Traders reported in(2008) 2 MLJ 1058 (SC). (iv) M.K. Hariprasad & another v. Uma Keshav reported in2009-5-L.W. 510. 15. A mere running of the eye over the aforesaid precedents of the Honourable Apex Court and this Court, would exemplify and demonstrate that there should be a clear finding by the lower Court adhering to the ingredients of the Order 38 Rule 5 of the Code of Civil Procedure that the revision petitioner/defendant was about to dispose of the whole or any part of the property or remove from the local administrative jurisdiction of the Court so as to defeat the execution of the decree if any passed as against him, but in this case, no reason is found set out in the order also. 16. In my considered opinion, the procedure was not at all adhered to by the lower Court. It is, therefore, just and proper to set aside the order and mandate as under: The matter is remitted back to the lower Court to adhere to the procedure strictly and pass orders. The revision petitioner/defendant is given liberty to furnish his detailed explanation as to how he is not bound to furnish security. Whereupon, after hearing both sides, the lower Court is bound to pass a detailed order. If such an order goes against the revision petitioner/defendant, it is open for him to prefer a Civil Miscellaneous Appeal as per Order 43 Rule 1(q) of the Code of Civil Procedure, as already observed supra. 17. Accordingly, this Civil Revision Petition is disposed of. Consequently, the connected Miscellaneous Petition is closed. No costs. 18. On hearing the order pronounced by this Court, the learned Counsel for the revision petitioner/defendant would submit that I.A.No.217 of 2012 may be ordered to be disposed of as expeditiously as possible. I am having no reason not to accept positively the request of the learned Counsel for the revision petitioner/defendant and accordingly, a direction is issued to the lower Court to dispose of the said I.A., within a period of one month from the date of receipt of a copy of this order.