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2022 DIGILAW 968 (AP)

Sk. Ameer Basha v. Manthana Vani

2022-09-30

NINALA JAYASURYA

body2022
JUDGMENT 1. These two Revisions Petitions have been filed aggrieved by a docket Order dtd. 25/2/2021 in I.A.No.221 of 2020 in O.S.No.15 of 2020 on the file of the Court of Principal Senior Civil Judge, Bapatla and are disposed of by this Common Order. 2. The petitioner in C.R.P.No.140 of 2022, is a 3rd party and was granted leave to present the Civil Revision Petition by an Order dtd. 25/2/2022 in I.A.No.1 of 2022. 3. The petitioner in C.R.P.No.423 of 2002 is the defendant in the above mentioned suit. The respondent/plaintiff filed the above said suit O.S.No.15 of 2020 against the defendant therein i.e., Smt.Dasari Siva Kumari, for recovery of an amount of Rs.21, 52, 000.00 on the strength of a Pronote dtd. 10/11/2017. In the said suit, the plaintiff filed I.A.No.221 of 2020 seeking conditional attachment of the petition schedule property before judgment. The learned Trial Court passed the following docket Order dtd. 25/2/2021: "Heard the counsel for petitioner. Perused the petition and affidavit schedule filed along this petition. Since the counsel for respondent filed a memo stating that he has no counter and same is recorded. Considering the facts and circumstances of case, issue conditional attachment over the schedule mentioned property on payment of process by 10/3/2021." Challenging the same, the present Revision Petitions came to be filed. 4. Heard Mr.J.Prabhakar, learned Senior Counsel appearing for the petitioner in C.R.P.No.140 of 2022 and Mr.P.Rajasekhar, learned counsel appearing on behalf of the petitioner in C.R.P.No.423 of 2022. Also heard Mr.Tandava Yogesh, learned counsel appearing for the respondent/plaintiff. 5. Drawing the attention of this Court to the various documents, the learned Senior Counsel, inter alia, submits that the Order under challenge is vitiated, as fraud was played on the Court. Referring to the Memo stated to have been filed on behalf of the defendant in O.S.No.15 of 2020, the learned counsel submits that in fact, no instructions or Vakalat was given to the counsel, who filed the said memo to the effect that "the defendant is reporting no counter" and "the I.A., may be allowed." He submits that the petitioner purchased the suit schedule property for a valuable consideration from the father of the defendant under a Registered GPA cum Agreement of Sale dtd. 19/4/2003, and that the property was delivered to the petitioner and he is in possession of the same. 19/4/2003, and that the property was delivered to the petitioner and he is in possession of the same. He also submits that initially one Kolleboyina Venkateswarlu filed O.S.No.385 of 2003 on the file of the Court of IV Additional Senior Civil Judge, Guntur, seeking Specific Performance of contract against one Pagadala Subba Rao, father of the petitioner in C.R.P.No.423 of 2022, that the petitioner in C.R.P.No.140 of 2022 was arrayed as defendant No.2 in the said suit and the same was dismissed on 12/3/2009. Aggrieved by which, an appeal was preferred in A.S.No.266 of 2009 and the appellate Court i.e., the III Additional District Judge, Guntur, by Judgment dtd. 30/7/2010, confirmed the order of the Trial Court. He also submits that aggrieved by the said orders, the matter was carried by way of Second Appeal in S.A.No.1363 of 2010 to this Court and the same was also dismissed on 25/8/2014 and on further appeal, the Hon'ble Supreme Court dismissed S.L.A.(C)No.7348 of 2015 vide Order dtd. 27/4/2015. He further submits that even the Review Petition in R.P.(C) No.3768 of 2016 in S.L.P.(C).No.14123 of 2015 was also dismissed by an Order dtd. 19/1/2017. He submits that during the pendency of the Second Appeal, the said Pagadala Subba Rao died and his legal heirs including the defendant in O.S.No.15 of 2020 were brought on record. The learned counsel submits that as the litigation with regard to the petition schedule property was finally set at naught by the Hon'ble Supreme Court and as the petitioner is entitled for registration of Sale Deed by virtue of the Registered General Power of Attorney cum Agreement of Sale dtd. 19/4/2003, the legal heirs of the said Pagadala Subba Rao including the defendant in O.S.No.15 of 2020/petitioner in C.R.P.No.423 of 2022 executed a Sale Deed in favour of the petitioner on 4/10/2021 and when the said document was presented for registration, the authorities refused to register the same on the premise that an Order of attachment was passed in O.S.No.15 of 2020. 6. The learned counsel submits that the docket Order of the Trial Court is not sustainable as mandatory requirements of Order XXXVIII, Rule 5 of Civil Procedure Code (for short 'C.P.C.') were not complied with. 6. The learned counsel submits that the docket Order of the Trial Court is not sustainable as mandatory requirements of Order XXXVIII, Rule 5 of Civil Procedure Code (for short 'C.P.C.') were not complied with. Drawing the attention of this Court to the docket proceedings, he submits that the procedure of calling upon the respondent/defendant to furnish security within stipulated time, has not been strictly adhered to and as is evident from Page 76 of the material papers, the defendant was called upon to furnish security within "Nil" hours and the notice was issued on 27/2/2021, though the attachment order was passed on 25/2/2021. Referring to the various Forms and method of service, he also points out that the material on record does not disclose an endorsement to the effect that the warrant was served and in the absence of the same, further proceedings under Order XXXVIII, Rule 6 of CPC cannot be taken. The learned counsel also submits that on mere Advocate's notice, the registration of Sale Deed was refused. 7. The learned counsel also submits that the petitioner filed I.A.No.178 of 2021 seeking to raise the attachment of property and the same is pending. Making the said submissions, the learned Senior Counsel seeks to set aside the Order under challenge. 8. Mr.Rajasekhar, learned counsel for the petitioner in C.R.P.No.423 of 2022, while supporting the contentions advanced by the learned Senior Counsel submits that the Court below has not recorded any reasons nor its satisfaction that the petitioner/defendant is trying to remove the property from the jurisdiction of the Court. He also submits that in fact the petitioner/defendant had not engaged the counsel, who had filed Memo and the signature on the Vakalat is a rank forgery. He also supports the case of the petitioner in C.R.P.No.140 of 2022 with regard to execution of G.P.A. cum agreement of sale, dtd. 19/4/2003 and also execution of Sale Deed dtd. 4/10/2021, referred to supra. The learned counsel, asserts that the petitioner/defendant had not received any notice in I.A.No.221 of 2020, as also the warrant of conditional attachment pursuant to the Orders dtd. 25/2/2021. The learned counsel submits that in the facts and circumstances of the case, the Order of attachment is liable to be set aside. 9. In support of their contentions, the learned counsel placed reliance on the decisions in Raman Tech and Processing Engineering Company, 2008(2) SCC 302 . 25/2/2021. The learned counsel submits that in the facts and circumstances of the case, the Order of attachment is liable to be set aside. 9. In support of their contentions, the learned counsel placed reliance on the decisions in Raman Tech and Processing Engineering Company, 2008(2) SCC 302 . Surender Singh Bajaj v. Kitty Steels Limited and another, 2002(3) ALD 191 (DB). Mandala Suryanarayana @ Babji v. Barla Babu Rao, 2010(2) ALD 417 (DB). Savita Chemicals (P) Ltd., v. Dyes & Chemical Workers' Union and Another, (1999) 2 SCC 143 . and Himalayan Coop.Group Housing Society v. Balwan Singh and Others, (2015) 7 SCC 373 . Premraj Mundra v. Md.Maneck Gazi and Others, AIR 1951 Calcutta 156. M/s.R.B.M.Pati Joint Venture v. M/s.Bengal Builder Opposite Party, AIR 2004 Calcutta 58 (DB). The Nellimarla Jute Mills Co. Ltd., v. Sree Mahaveer Rice and Oil Mills, AIR 1989 AP 214 . Skoda Auto India Pvt. Ltd., v. St.Antony's Trading Company and Others, 2018 2 CurCC 404 (DB). and Sports Authority of A.P., Hyderabad v. Regal Sports Company, Secunderabad, (2008) 6 ALD 759 . 10. Per contra, the learned counsel for the respondent/plaintiff submits that the allegations made against the concerned Advocate who filed Memo are not correct and tenable. He submits that the Order under challenge has been passed after due compliance with the procedure contemplated under Order XXXVIII, Rule 5 of C.P.C. Learned counsel also submits that the Revision Petitioner in C.R.P.No.140 of 2022 is not having any title or possession in respect of the suit schedule property and the Revision Petitioners acting in collusion, are making attempts to frustrate the claim of the plaintiff in the suit. He also submits that the petitioner in C.R.P.No.140 of 2022 had filed applications in the suit and instead of pursuing the same, had filed the present C.R.P., and the same is not maintainable. The learned counsel would also submit that if the Order of Attachment is set aside, the plaintiff/respondent being a lady, would not be in a position to recover the suit amount, in the event of decree being granted in her favour. He submits that there are no grounds, much less valid grounds to interfere with the Order under Revision and in the absence of any irregularity or perversity, the same cannot be interfered in exercise of powers under Article 227 of Constitution of India. He submits that there are no grounds, much less valid grounds to interfere with the Order under Revision and in the absence of any irregularity or perversity, the same cannot be interfered in exercise of powers under Article 227 of Constitution of India. Accordingly, learned counsel urges for dismissal of the Revision Petitions. 11. This Court has considered the submissions made and perused the material on record. On appreciation of the rival contentions, the point that falls for consideration is, "Whether the docket Order dtd. 25/2/2021 warrants interference by this Court in the facts and circumstances of the case"? 12. One of the main contentions advanced by the learned counsel for the petitioners is that the Order under challenge is vitiated by fraud. It is their contention that the defendant in the suit had not engaged the Advocate one Mr.Ravi, who had filed a Memo to the effect that the defendant consented for the Order of Attachment. This is a serious allegation, which in the considered opinion of this Court, needs to be examined by the Trial Court on the basis of material, after giving due opportunity to the concerned parties. It would also appear that a complaint is lodged against the concerned Advocate and the same is pending consideration. Therefore, this Court is not inclined to examine the said aspect and deems it appropriate to leave the same to the learned Trial Court. 13. Insofar as the contention with regard to noncompliance/adherence to requirements under Order XXXVIII, Rule 5 of CPC, it may be appropriate to reproduce the same for ready reference. 5. Where defendant may be called upon to furnish security for production of property. 13. Insofar as the contention with regard to noncompliance/adherence to requirements under Order XXXVIII, Rule 5 of CPC, it may be appropriate to reproduce the same for ready reference. 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. 14. The above provision of Law contemplates that if the Court is satisfied by an affidavit or otherwise, that the defendant with an intention to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the defendant, inter alia, may be called upon either to furnish security or to appear and show cause why he should not furnish security, within the stipulated time. 15. In the present case, the docket orders dtd. 22/2/2021 and 25/2/2021 does not contain any reasons recording satisfaction of the Court for ordering Conditional Attachment. 15. In the present case, the docket orders dtd. 22/2/2021 and 25/2/2021 does not contain any reasons recording satisfaction of the Court for ordering Conditional Attachment. No time is fixed for furnishing security / to show cause as to why the defendant should not furnish a security, in compliance with Order XXXVIII, Rule 5 of CPC. Merely because a memo is filed, the authenticity of which is in question, stating that there is no counter on behalf of the defendant, the Court would not be absolved of satisfying itself that the defendant is making efforts to dispose or remove the whole or any part of his/her property from the local limits of the jurisdiction of the Court. Satisfaction of the Court is sine-qua non for granting an Order of attachment under Order XXXVIII, Rule 5 of CPC. 16. In Raman Tech's case, the Hon'ble Supreme Court, inter alia, held that "the power under Order XXXVIII, Rule 5 of CPC is a drastic and extraordinary power and that such power should not be exercised mechanically or merely for the asking". It was also held that the power should be used sparingly, strictly in accordance with the Rule and the purpose of the said Order is not to convert an unsecured debt into secured debt. It was further held that a defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him and that the plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the Court that the defendant is about to remove or dispose of the whole or part of his property with an intention of obstructing or delaying the execution of any decree that may be passed against him, before power is exercised under Order XXXVIII, Rule 5 of CPC. 17. 17. In Surender Singh Bajaj's case referred to supra, a Division Bench of the erstwhile High Court of Andhra Pradesh at Hyderabad, inter alia, held that the satisfaction of the Court that the defendant with an intention to obstruct or delay the execution of the decree that may be passed by it, is about to dispose of the whole or part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, is sine-qua non for exercising the power under Order XXXVIII, Rule 5 of CPC. In the facts and circumstances of the case, the Hon'ble Division Bench was pleased to set aside the impugned Order as the Trial Court has not recorded the said satisfaction. 18. In Mandala Suryanarayana's case referred to supra, another learned Division Bench inter alia held that an Order of attachment before the judgment without giving reasons would be an illegal Order and that even when a prima facie case is proved, an Order of attachment cannot be straight away issued without following the procedure contemplated under XXXVIII, Rule 5 of CPC. The Hon'ble Bench further opined that satisfaction of the Court must be arrived at with reference to necessary material placed before the Court and it is always open to the defendant to appear and plead and prove contra. 19. In M/s.R.B.M.Pati Joint Venture, a Division Bench of the High Court of Calcutta was dealing with an Order passed by the Trial Court granting attachment before judgment. While referring to the case of Premraj Mundra v. Md.Maneck Gazi( AIR 1951 Cal 156 ) and the guiding principles laid down therein, it set aside the Order passed by the Trial Court. It is apposite to extract the relevant para, which reads as follows: "17. The fact which was taken into consideration in the impugned order that the defendant in spite of notice did not appear in the Court, is not sufficient for passing any order of attachment before judgment. The contention of the learned counsel for the respondent that materials being available on record, it is not important that necessary reasons have not been stated in the impugned order, does not appear to be correct as the satisfaction of the Court has to be indicated in the order itself." 20. The contention of the learned counsel for the respondent that materials being available on record, it is not important that necessary reasons have not been stated in the impugned order, does not appear to be correct as the satisfaction of the Court has to be indicated in the order itself." 20. In Skoda Auto India Pvt. Ltd., referred to supra, a Division Bench of Kerala High Court, while opining that attachment before judgment is an extraordinary power and the Court may grant with some care and caution, inter alia, held that vague and general allegation that the defendant is about to dispose of the property or remove the property beyond the jurisdiction of the Court, unsupported by particulars, would not be sufficient compliance with the Rule. The Hon'ble Division Bench held that incumbent upon the plaintiff to state the grounds on which he entertains belief or apprehension that the defendant would dispose of or remove the property. 21. In Nellimarla Jute Mills Co. Ltd's case referred to supra, the learned Judge, inter alia, found fault with the Order of attachment passed without observing the formalities, which are mandatory in nature and set aside the same. 22. In Sports Authority of Andhra Pradesh, Hyderabad, the learned Judge of erstwhile High Court of Andhra Pradesh at Hyderabad, set aside the order of attachment, inter alia, holding that the same was made in mechanical way, without proper application of mind and without exercising the discretion in a proper perspective. 23. In Savita Chemicals Private Limited's case, the Hon'ble Supreme Court was not inclined to interfere with the Order passed by the High Court under Article 227 of the Constitution of India, in setting aside patently illegal findings of the Labour Court. 24. Applying the above well settled legal principles to the facts of the present case, this Court finds merit in the submissions made on behalf of the petitioners and the same deserves acceptance. Though, it appears that the Order of attachment dtd. 25/2/2021 came to be passed in the light of the Memo filed allegedly without authorization of the defendant by a counsel, which is in dispute, the Trial Court had not recorded its satisfaction for grant of conditional attachment, which is a pre-requisite. Though, it appears that the Order of attachment dtd. 25/2/2021 came to be passed in the light of the Memo filed allegedly without authorization of the defendant by a counsel, which is in dispute, the Trial Court had not recorded its satisfaction for grant of conditional attachment, which is a pre-requisite. Further, as pointed out by the learned counsel for the petitioners, the other requirements of fixing a time limit for furnishing security or issuance of show cause notice as to why the defendant shall not furnish security as ordained under Order XXXVIII, Rule (1)(b) of CPC, have not been complied with. Under such circumstances, by virtue of Order XXXVIII Rule 5(4) of CPC, the Order of attachment, under Order XXXVIII, Rule 5 of CPC is void and accordingly, the same is set aside. 25. Though the learned counsel for the respondent/plaintiff tried to impress upon this Court that the plaintiff being a lady would not be in position to realize the fruits of decree, in the event the suit being allowed in her favour in the absence of an Order of attachment, unless the Court records its satisfaction about existence of a prima facie case, no Order of attachment before judgment can validly be granted, let alone be continued. In view of the settled legal position, this Court has no option except to reject the contentions advanced by the learned counsel for the respondent/plaintiff. 26. For the conclusions arrived at supra, the Docket Order dtd. 25/2/2021 is set aside. The learned Trial Court shall take up I.A.No.221 of 2020 and decide the same in accordance with Law, as expeditiously as possible, within a period of four (4) weeks from the date of receipt of copy of this Order. It shall also consider the issue with regard to Memo referred to above, while adjudicating I.A.No.221 of 2020. 27. With the above directions, the Civil Revision Petitions stands allowed. No costs. As a sequel, miscellaneous applications, if any, pending shall stand closed.