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2014 DIGILAW 2964 (MAD)

K. Sudhakaran v. R. S. Paramasivam

2014-08-28

R.KARUPPIAH

body2014
Judgment 1. The appellant, who is the defendant in the original suit filed the Civil Miscellaneous Appeal against the fair and decretal order passed in I.A.No.200 of 2013 in O.S.No.32 of 2013, dated 23.06.2014 on the file of the Principal District Judge, Karur. 2. Heard the submissions made by the learned counsel for the appellant as well as the learned counsel for the respondent and perused the materials available on record. 3. For the sake of convenience, the respondent in I.A.No.200 of 2013 who is defendant in the suit referred as appellant and Petitioner in I.A.No.200 of 2013, who is plaintiff in the suit is referred as respondent hereafter. 4. Admittedly, the respondent/plaintiff filed a suit in O.S.No.32 of 2013 for recovery of money, on the basis of the promissory note as against the appellant/defendant. At the time of filing the suit, the respondent also filed an application under Order 38 Rule 5 of Civil Procedure Code and seeking a direction to furnish security, failing which for attachment in respect of the properties belonging to the appellant before judgment as security for the suit claim. In the above said application, the respondent herein stated that the appellant with an intention to defeat the claim of the respondent arranged to convert the properties as house site and trying to sell the petition mentioned properties and on that ground prayed for attachment before judgment of the above said properties. 5. The appellant/defendant herein filed a detailed counter in which, denied the above said promissory note as a forged document and also denied the allegation that the appellant was making arrangements to convert the properties into house site and trying to sell the properties. Further, it is stated in the counter that the appellant is ready to furnish security in respect of the property situated at Karudayampalayam Village, Aravakurichi Taluk. 6. On a perusal of the order passed by the Trial Court revealed that the appellant already furnished property particulars in the counter and seeks to attach the property comprised in S.F.No.98/4 of Karudayampalayam Village. 6. On a perusal of the order passed by the Trial Court revealed that the appellant already furnished property particulars in the counter and seeks to attach the property comprised in S.F.No.98/4 of Karudayampalayam Village. Subsequently as per order of the trial Court, the appellant herein filed fresh security in respect of second item of the Petition mentioned property i.e., T.S.No.5099 along with sale deed, dated 24.04.1999 in respect of the above said item and also another sale deed in respect of first item of the petition mentioned property along with necessary documents and the appellant prayed for to accept the above said second item as security for the suit claim. The trial Court on perusal of the security bond, it is stated in the order that the above said security bond produced by the appellant is not in accordance with Form-VI to Appendix-F of Civil Procedure Code and therefore rejected to accept the security bond furnished for the second item and directed to attach before judgment in respect of first item except the portion of the property already sold by the appellant as security for the suit claim. 7. Aggrieved over the above said attachment order passed in respect of first item and rejected the security furnished by the appellant in respect of second item, this Civil Miscellaneous Appeal has been filed by the appellant. 8. The learned counsel appearing for the appellant would submit that the second item mentioned in the attachment petition is a valuable property more than the suit claim and it is free from encumbrance. The learned counsel further pointed out that the appellant furnished the above said property as security for the suit claim with all relevant documents, but the Trial Court without any acceptable reasons rejected the above said security bond by merely stating that it has not been executed in accordance with Form No. VI to Appendix-F of Civil Procedure Code. Therefore the above said order is liable to be set aside. Further, the learned counsel pointed out that the trial Court has not at all given any opportunity to rectify the defect even if any defect in the security bond and therefore the above said order passed by the trial Court is illegal. 9. Therefore the above said order is liable to be set aside. Further, the learned counsel pointed out that the trial Court has not at all given any opportunity to rectify the defect even if any defect in the security bond and therefore the above said order passed by the trial Court is illegal. 9. Per contra, the learned counsel for the respondent would submit that since the appellant failed to furnish the security bond in accordance with Form VI to Appendix-F of Civil Procedure Code, the rejection order passed by the trial Court is valid in law. 10. Admittedly, the appellant herein furnished security bond along with several documents before the trial Court. But on perusal of the order reveal that without any particulars of the defects in the above said bond and document merely stating that it has not been executed in accordance with Form -VI to Appendix-F rejected the application. If the trial Court found any defects in the above said security bond, the trial Court should have return back and given an opportunity to rectify the defects by the appellant. Therefore the order passed by the trial Court is illegal and is liable to be set aside as rightly pointed out by the learned counsel for the appellant. 11. At the time of submission, learned counsel for the respondent pointed out that the trial Court has not considered the contentions raised by the respondent regarding the property already attached in other proceedings in a suit filed by the respondent/wife. 12. In the above said circumstances, this Court is of the view that the trial Court has to consider all the points raised by the learned counsel on both sides and pass necessary detailed order in the above said application and for that purpose, it should be remitted back to the trial Court. 13. In the result, the Civil Miscellaneous Appeal is allowed and the order made in I.A.No.200 of 2013 in O.S.No.32 of 2013 dated 23.06.2014 on the file of the Principal District Judge, Karur is set aside and the application is remitted back to the trial Court and the trial Court is directed to give an opportunity to both the appellant to rectify the defects and then consider both side contentions and pass necessary orders within one month from the date of receipt of a copy of this order. Consequently, connected Miscellaneous Petition is closed. Consequently, connected Miscellaneous Petition is closed. No costs.