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2023 DIGILAW 608 (MAD)

Ganapathiammal v. Kanagalakshmi

2023-02-20

B.PUGALENDHI

body2023
ORDER : (Prayer : Civil Revision Petition is filed under Article 227 of the Constitution of India, to allow this civil revision petition by setting aside the fair and decreetal order made in IA.No.02 of 2022 in OS.No.16 of 2022 dated 18.08.2022 on the file of the II Additional District Court, Thoothukudi.) This civil revision petition is filed as against the fair and decreetal order made in IA.No.02 of 2022 in OS.No.16 of 2022 dated 18.08.2022 on the file of the II Additional District Court, Thoothukudi. 2. The Revision Petitioners before this Court are the plaintiffs in the O.S.No.16 of 2022 before the II Additional District Court, Thoothukudi, which was filed for the relief of recovery of money. The petitioners also filed an interlocutory application in I.A.No.2 of 2022 under Order 38 Rule 5 and Section 151 of the Code of Civil Procedure, for directing the respondent to furnish security, in default, to attach the property before passing of the judgment. However the trial court dismissed the said interlocutory application. Aggrieved over the same, the plaintiffs have filed the present revision. 3. The petitioners filed the suit in OS.No.16 of 2022 for recovery of Rs.26,00,000/- with 12% interest per annum on the basis of a promissory note dated 17.02.2020. The case of the petitioners is that the respondent’s husband availed a loan of Rs.26,00,000/- from the petitioners at 1% interest on 17.12.2020 and for security, he executed a promissory note on the same date. The respondent produced two cheques dated 20.03.2021 for Rs.26,00,000/- and Rs. 1,00,000/-. But before the encashment of the cheques, the respondent’s husband passed away on 18.05.2021. When the petitioners demanded repayment of the loan, the respondent denied the loan availed from the petitioners. Hence the petitioners filed the above suit. The petitioners also filed an application in IA.No.2 of 2022 under Order 38 Rule 5 of CPC for a direction to the respondent to furnish security and if not, to attach the property, since the respondent was attempting to alienate the properties of her husband in favour her benami. The respondent denied the loan availed by her husband that her husband and stated that had intimacy with the first petitioner’s daughter, who stole the cheques and promissory notes to misuse the same. 4. The respondent denied the loan availed by her husband that her husband and stated that had intimacy with the first petitioner’s daughter, who stole the cheques and promissory notes to misuse the same. 4. The interlocutory application in IA.No.2 of 2022 was dismissed by the trial court on the ground that the petitioners failed to prove their capacity to lend a huge sum of Rs. 26,00,000/- to the respondent’s husband and the petitioners failed to prove by producing any other documents for having lent the money to the respondent. 5. This court considered the rival submissions and perused the materials placed on the record. 6. In this case, the petitioners produced two sale deeds before this court, executed by the respondent on 27.01.2022. However the petitioners have not taken any initiatives to collect these documents at the relevant period, when the said interlocutory application was pending. Moreover these documents were also not filed along with the revision petition. The trial Court cannot pass an order of attachment on the vague allegations made by the petitioners without any materials and therefore, the trial Court cannot be found fault in dismissing the application. 7. The respondent had denied the loan and made an allegation against the husband that he had an illegal intimacy with the first petitioner’s daughter and she has stolen the cheques and promissiory note, which are misused against her and her husband. The truth or otherwise of the allegations can be ascertained only during the trial. The fact remains that the suit is filed based on a promissory note by the respondent’s husband and he also issued two cheques dated 20.03.2021 in favour of the plaintiffs/petitioners. The respondent’s husband is no more and hence the suit is filed against the respondent. 8. This Court in Renox Commercials Ltd. v. Inventa Technologies Pvt. Ltd., reported in AIR 2000 Mad page 213 in respect of attachment before passing of judgment, under Order 38 Rule 5 CPC, held as follows: “24.The reading of the above provision would make it clear that there are essential requirements which must be proved to the satisfaction of the Court. This Court in Renox Commercials Ltd. v. Inventa Technologies Pvt. Ltd., reported in AIR 2000 Mad page 213 in respect of attachment before passing of judgment, under Order 38 Rule 5 CPC, held as follows: “24.The reading of the above provision would make it clear that there are essential requirements which must be proved to the satisfaction of the Court. They are as follows:— “(i) The defendant is about to dispose of the whole or any part of his property; or (ii) The defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court; (iii) That the defendant is intending to do so to cause obstruction or delay in the execution of any decree that may be passed against him. Vague and general allegations that the defendant is about to dispose of the property or remove it beyond the jurisdiction of the Court, unsupported by particulars, would not be sufficient compliance with the rule. (iv) It is incumbent upon the plaintiff to state the grounds on which he entertains the belief or apprehension that the defendant would dispose of or remove the property, or, to give the source of his information and belief in the matter through an affidavit.” 9. In view of the above discussion, this court is of the view that the petitioners have made out a case for an order of attachment under Order 38 Rule 5 CPC pending the suit. However, the documents now placed before this court, were not produced before the trial court in the interlocutory application, filed by the petitioners seeking an order of attachment. 10. In the light of the above, this revision petition is allowed. The case is remanded back to the trial Court to decide the interlocutory application in IA.No.02 of 2022 in OS.No.16 of 2022 afresh and the petitioners are at liberty to produce the said documents before the trial Court. No costs.