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2013 DIGILAW 67 (AP)

Velu Yarn Traders Chittoor District v. Lakshmi Priya Exports (India) Private Limited

2013-02-06

L.NARASIMHA REDDY

body2013
ORDER: The subject-matter of this batch of revisions is similar. Hence, they are disposed of through a common order. 2. The petitioners in these revisions filed different suits initially in the Court of IV Additional District Judge, Tirupathi, for recovery of amount, against the respective defendants. They have also filed applications under Order XXXVIII Rule 5 CPC, along with the suits. Ex parte orders of attachment before judgment were passed at the threshold itself. Thereafter, the 1st defendant in the respective suits filed counters, with a request to raise the attachment. The suits came to be transferred to the Court of III Additional District Judge, Tirupathi. That Court has taken up the applications and passed a similar, but different orders, dated 04.07.2012, raising the attachments in the respective suits. Hence, these revisions. 3. Sri K.G.Krishna Murthy, learned Additional Advocate General for the petitioners, submits that orders of attachment before judgment were in force for the past five years and the attachments were raised without there being any justification. He contends that the trial Court has proceeded on hyper-technicalities, and has accepted several contentions, which are not borne out by record. He submits that on the one hand, the 1st defendant pleaded that the properties are owned by the other individuals arrayed as defendants, and on the other hand, it prayed for raising of attachment in the respective suits. He further submits that the view expressed by the trial Court that only two third-party affidavits are filed, cannot be sustained in law. 4. Sri S.Subba Reddy, learned counsel for the respondents, on the other hand, submits that at the initial stage itself, the prescribed procedure was not followed and taking the same into account, the trial Court has raised the attachments. He submits that the revisions are not maintainable and that, only appeals could have been filed. 5. At the outset, the objection raised by the respondents as to the maintainability of the revisions, needs to be taken into account. It is no doubt true that Order XLIII Rule 1(q) provides for an appeal against an order passed under Rules 3 or 6 of Order XXXVIII CPC. The omission of Rule 5 in that provision, under which an order of attachment before judgment can be passed, has its own significance. It is no doubt true that Order XLIII Rule 1(q) provides for an appeal against an order passed under Rules 3 or 6 of Order XXXVIII CPC. The omission of Rule 5 in that provision, under which an order of attachment before judgment can be passed, has its own significance. This Court has taken view in some of the cases that an order through which attachment before judgment is raised, is not appelable. There is no independent provision, which deals with the raising of the attachment and invariably, it must be under Rule 5 of Order XXXVIII CPC. On their part, the petitioners have also initially filed appeals. It is only when the objection was raised as to the maintainability of the appeals, that they filed the revisions. Hence, the objection cannot be sustained. 6. As many as four suits were filed against the same defendants. In all of them, applications under Order XXXVIII Rule 5 CPC were filed. The trial Court was impressed by the contents of the third-party affidavits filed therein and ordered attachment before judgment. While the 1st defendant is a company, the other defendants are individuals. The principal contention urged by the 1st defendant was that the properties are owned by other defendants, who figured as defendants. If that were to be so, the concerned parties ought to have filed counters or applications for raising attachments. It is not in dispute that the said individuals are Directors of the 1st defendant-company. 7. Secondly, the question as to whether the respondents were proposing to sell the property that too in the limited context of Order XXXVIII Rule 5 CPC, cannot be decided with mathematical precision. The plaintiff in the suit has to act upon his apprehension, may be that, the apprehension must be supported by some relevant facts. Except that he can gather information from the known sources, he cannot have direct access to the steps being taken by the defendants vis-à-vis the property. The third-party affidavits filed in this regard assume significance. The apprehension of the petitioners that the respondents are trying to sell the property, has been proved to be correct from the fact that soon after the trial Court has raised orders of attachment, they have executed sale deeds in respect of various items of property. The third-party affidavits filed in this regard assume significance. The apprehension of the petitioners that the respondents are trying to sell the property, has been proved to be correct from the fact that soon after the trial Court has raised orders of attachment, they have executed sale deeds in respect of various items of property. It may be a different matter that the attachment was not in force as regards some items, which are sold. 8. Be that as it may, there is a clear recital in the counter filed by the 1st respondent to the effect that they hold various properties in Nagari and Chennai and that they have no necessity to sell the properties. Therefore, they should not feel any difficulty or inconvenience on account of the order of attachment. At any rate, if the respondents intended to attach the property, they can take steps for raising of attachment, by offering security up to the value of the suit claim or the item of property, as the case may be. The orders of attachment before judgment, that were in force for the past five years, cannot be withdrawn at this stage. In stead, the suits can be taken up for trial. 9. Hence, the C.R.Ps., are allowed and the orders under revision are set aside. The result would be that the orders of attachment before judgment passed in the suits shall remain in force, until the disposal of the suits. The trial Court shall commence the trial of the suits, if not already commenced and make an endeavour to dispose of the same within a period of three months from the date of receipt of a copy of this order. There shall be no order as to costs. 10. The miscellaneous petition filed in these revision petitions shall stand disposed of.