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2025 DIGILAW 1259 (KER)

Arvind Pundalik Tendulkar, Son of Pundalik S. Tendulkar v. Raju K. Mathews, S/o. Mathew

2025-05-20

T.R.RAVI

body2025
ORDER : (T.R. RAVI, J.) This review petition, seeking review of the judgment dated 18.10.2024 in F.A.O.No.124/2023, has been filed by the 1 st respondent in the appeal. The main ground on which the review is sought is that there is an error apparent on the face of the record, as the Court has not considered the factors enumerated in Order XXXVIII Rule 5 of the Code of Civil Procedure as elaborated by the Apex Court in Raman Tech. & Process Engg. Co. & Anr v. Solanki Traders [ 2008 (2) SCC 302 ] . It is also stated that several other submissions on behalf of the review petitioner have not been considered. There is also a contention taken that the order of attachment should have been limited to a sum of Rs.4,61,31,838/-. 2. The grounds on which a review can be preferred are no longer res integra. The Hon'ble Supreme Court has recently, in the judgment in Siddamsetty Infra Projects Pvt.Ltd v. Katta Sujatha Reddy and others 2024 SCC OnLine SC 3214, held as follows: “D. Grounds for exercising review jurisdiction 18. Before proceeding with the analysis, we will refer to the grounds for exercising review jurisdiction. Order XLVII of the Supreme Court Rules 2013 states that an application for review must be filed on the grounds mentioned in Order XLVII Rule 1 of the Code of Civil Procedure 1908 (“CPC”). Order XLVII Rule 1 of CPC lays down the following grounds for review: a. Discovery of new and important matter or evidence, which after the exercise of due diligence was not within their knowledge or could not be produced by them at the time the decree was passed; b. Mistake or error apparent on the face of the record; and c. Any other sufficient reason. 19. 19. This Court has laid down the following principles on the exercise of review jurisdiction 7 a. Review proceedings are not by way of appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 CPC; b. Error on the face of record must be an error which must strike one on a mere perusal and must not on a long drawn process; c. The power of review must not be exercised on the ground that the decision was erroneous on merits; d. The phrase “any other sufficient reason” means a reason that is analogous to the grounds specified in Order 47 Rule 1 CPC; and e. The mere possibility of two views on the subject cannot be a ground for review”. 3. The review petition cannot, hence, be treated as an appeal, and the error should be apparent on the face of the record, on a mere perusal, and not on a long drawn-out process. Error in the decision on its merits is also not a ground available for exercising the power of review. A reading of the grounds raised in this review petition shows that the review petitioner contends that the judgment is erroneous on the merits. Going by the dictum laid down by the Hon'ble Supreme Court, there is no reason to entertain this review petition. 4. On merits, the contention is that an order of attachment ought not to have been granted in the light of the law laid down by the Hon'ble Supreme Court in Raman Tech. (supra). The counsel for the review petitioner placed reliance on paragraphs 4 & 5 of the judgment, which are extracted below: “4. The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The object of Order 38 Rule 5 CPC in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order 38 and the use of the words “to obstruct or delay the execution of any decree that may be passed against him” in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the court should be satisfied that the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case. 5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.” 5. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment.” 5. The Hon'ble Supreme Court has held that if the averments in the plaint and the documents produced in support, do not satisfy the Court about the existence of a prima facie case, the Court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 34 Rule 5 CPC. This is a case where the suit is filed by the Advocate who appeared for the review petitioner in several cases, for the realisation of his professional fee. Details of the claim have been very specifically stated in the plaint. The fact that the plaintiff was appearing for the review petitioner is not disputed. In the written statement filed by the review petitioner, a serious contest is taken regarding the quantum of the fee, and it is contended that what is claimed is extortionate and contrary to the Rules for Payment of Fees framed by the High Court of Kerala. The appeal, which led to the judgment sought to be reviewed, was filed by the plaintiff against modification of the order of attachment by restricting the same to item 1 and lifting the attachment against item 2. In the judgment, this Court has noted that the appeal was filed because the property attached will not be sufficient to meet the plaint claim. This Court has also noted the contentions of the review petitioner in paragraph 6 of the judgment, which was to the effect that the attachment over item 1 will be sufficient to meet the requirements in the plaint claim. In paragraph 7 of the judgment sought to be reviewed, this Court has also observed that the 1 st respondent does not say that no amount was due to be paid to the plaintiff towards the Advocate's fee. As such, it cannot be said that the plaint and the documents produced are insufficient to satisfy the Court about the existence of a prima facie case. The counsel for the review petitioner also relied on the judgment of this Court dated 30.01.2024 in F.A.O.No.130/2022, wherein this Court had considered the judgment in Raman Tech. (supra). As such, it cannot be said that the plaint and the documents produced are insufficient to satisfy the Court about the existence of a prima facie case. The counsel for the review petitioner also relied on the judgment of this Court dated 30.01.2024 in F.A.O.No.130/2022, wherein this Court had considered the judgment in Raman Tech. (supra). This Court, in the said judgment, set aside the order of attachment granted by the court below, finding that the requirements laid down in Raman Tech. (supra) had not been satisfied. The said judgment, however, is distinguishable on the facts. The judgment was rendered in a case where the suit was laid on the allegation that amounts were misappropriated by the defendant while working in the plaintiff's company as its Vice President. A criminal complaint preferred against the defendant was referred, finding that the dispute is of a civil nature. The averment to support the claim for attachment was that the plaintiff had received information from a real estate broker that the defendant was likely to part with his property. It was also a case where the defendant had filed a petition before the Taluk Legal Service Committee, claiming an amount that was more than double the plaint claim from the plaintiff. The plaintiff filed the suit only after the defendant had preferred his claim. It was also a case where the Court found that the Exhibits produced did not give any clarity regarding the claim. The court below in that case had also observed that the plaintiff could not convince the Court about the allegations set forth in the plaint through the furnished documents. It was in the above set of facts that this Court had vacated the order of attachment. The facts in this case, as already narrated, are different. In the above circumstances, no grounds are made out for review. The review petition is dismissed.