Andhra Pradesh High Court - Amravati
Potluri Soma Sekhar, vs Atluri Venkata Ravindra, on 17 August, 2021
THE HON'BLE SRI JUSTICE BATTU DEVANAND
CIVIL REVISION PETITION Nos.364 & 663 OF 2021
COMMON ORDER:
C.R.P.NO.364 OF 2021:
This Civil Revision Petition is filed against the order,
dated 22.10.2020 in I.A.No.275 of 2020 in O.S.No.2 of
2020, on the file of the XV Additional District Judge, Krishna
District, Nuzvid.
C.R.P.NO.663 OF 2021:
This Civil Revision Petition is filed against the order,
dated 21.05.2021 in I.A.No.275 of 2020 in O.S.No.2 of
2020, on the file of the XV Additional District Judge, Krishna
District, Nuzvid.
2) In both revision petitions parties are the same
and issue involved in both the C.R.Ps. is the same.
Accordingly, both revision petitions are heard together.
3) The petitioners are defendants and the
respondent is plaintiff in O.S.No.2 of 2020.
4) Heard Sri Venkateswara Rao Gudapati, learned
counsel for the petitioners and Sri Sri Charan Telaprolu,
learned counsel for the respondent. Perused the record.
5) The facts of the case are:
(i) The respondent herein filed a suit in O.S.No.2 of
2020 for recovery of Rs.3,43,73,330/- with interest @ 24%
per annum from 01.01.2017 in addition to execution of
regular sale deed in respect of plaint schedule properties
(i.e.) Ac.0-31 cents of land in S.No.594/1 of Konnamgunta
Village which was standing in the name of 1st petitioner and
an extent of 225 sq. yards in R.S.No.595 of Nuzvid situated
in Konnamgunta road within the limits of Nuzvid, Krishna
District. Along with the suit he filed I.A.No.275 of 2020
under Order 38 Rule 5 of C.P.C. seeking attachment order
in respect of item Nos.1 to 3 of petition schedule properties
pending disposal of the main suit filed against the
defendants.
(ii) After hearing both sides, the trial Court directed
the petitioners to furnish security to a tune of
Rs.3,43,73,330/- within two weeks from the date of receipt
of the order, failing which the petition schedule properties
are ordered to be attached till disposal of main suit. This
order was passed on 22.10.2020 in I.A.No.275 of 2020.
(iii) Subsequently, the petitioners furnished security
before the trial Court. But, the trial Court without satisfied
with the security furnished by the petitioners by its docket
order, dated 25.01.2021 affected the interim attachment
order passed by this Court on 22.10.2020 subject to
mortgage in respect of item Nos.1 to 3 of the petition
schedule properties. Aggrieved by the order, dated
22.10.2020 in I.A.No.275 of 2020 and docket order, dated
25.01.2021 in I.A.No.275 of 2020, passed by the trial
Court, the present revision petitions are filed by the
petitioners.
6) Learned counsel for the petitioners would submit
that the 1st petitioner herein offered the respondent for sale
of Ac.1-00 cents of land in R.S.No.126 of Gajularamaram
Village, Qutbullapur Mandal, Ranga Reddy District.
Accordingly, the respondent agreed to purchase the suit
schedule property under an agreement of sale, dated
27.04.2010 and paid entire sale consideration. Later, the
respondent came to know that the 1st petitioner has sold
the suit schedule property along with some other properties
for huge amounts to third parties. After coming to know
about the fraudulent transaction and cheating committed by
the 1st petitioner, the respondent questioned the
petitioners. In order to avoid legal consequences, the
petitioners agreed to pay Rs.2,00,00,000/- (Rupees two
crores only) towards return of amount paid by him in the
sale transaction in addition to give Ac.0-31 cents of land in
S.No.594/1 of Konnamgunta Village, which stands in the
name of 1st petitioner and an extent of 255 sq. yards in
S.No.595 of Nuzvid situated in Konnamgunta road which
stands in the name of 2nd petitioner, who is the wife of the
1st petitioner. The respondent agreed for the same and
accordingly, an agreement was entered by the petitioners
and the respondent on 01.01.2017 and the petitioners
agreed to pay a sum of Rs.2,00,00,000/- (Rupees two
crores only) by 31.01.2017 along with interest @ 24% per
annum and agreed to execute sale deeds in respect of said
properties covered by "A and B" schedule properties by
getting the said properties released from mortgage of SBI,
Patamata, SME branch.
7) Subsequently, the petitioners did not come
forward to pay the agreed amount of Rs.2,00,00,000/-
(Rupees two crores only) and failed to execute the
registered sale deeds in respect of the petition schedule
properties in spite of repeated demands. Then the
respondent got issued a legal notice, dated 07.12.2019.
Though it is received on 10.12.2019, the petitioners did not
come forward to discharge the debt and failed to execute
the sale deeds in favour of the respondent in respect of
petition schedule properties as per their agreement, dated
01.01.2017. Hence, the respondent constrained to file the
suit in O.S.No.2 of 2020.
8) Learned counsel for the petitioners submits that
the trial Court failed to understand the provision of Order
38 Rule 5 of C.P.C. and erred in passing the order. The
Court below should satisfy based on the affidavit or
otherwise, that the property being disposed off or not or is
being removed from the local limits of jurisdiction, unless
the said grounds are satisfied, the question of granting an
order does not arise.
9) Learned counsel for the petitioners further
submits that the security furnished by the petitioners herein
is sufficient for discharge of the suit amount, without giving
reasons, the trial Court passed order for attachment of item
Nos.1 to 3 of the petition schedule properties is liable to be
set aside. The learned counsel submits that the trial Court
ought to have considered that while attaching the
properties after passing the order under Order 38 Rule 5
has to pass an independent order under Order 38 Rule 36,
but it is passed an order under Order38 Rule 5, attaching
the properties is absolutely illegal and unsustainable and
sought to set aside the orders passed by the trial Court by
allowing the revision petitions.
10) On the other hand, learned counsel for the
respondent submits that the petitioners are making
attempts to hide the properties standing in the name of
petitioners (i.e.) an extent of 2.03 guntas of dry land in
R.S.No.101/A or 101/a of Kothuru Village and Mandal,
Ranga Reddy District (Mahaboob Nagar District), on the file
of SRO, Shadnagar. An extent of 967 square yards (8
guntas) of vacant site in R.S.No.55/A of Nanakramguda
village of Serilingampalli Mandal, Ranga Reddy District, an
extent of 726 sq uare yards (6 guntas) of vacant site in
R.S.No.55/A of Nanakramguda village of Serilingampalli
Mandal, Ranga Reddy District. If the petitioners are
allowed to alienate the petition schedule properties, the
respondent would face irreparable loss and hardship to
realize the suit amount. As such, the respondent sought
conditional attachment order of petition schedule properties
towards security pending disposal of the main suit.
11) Learned counsel for the respondent further
submits that the trial Court having considered the facts and
circumstances of the case rightly passed order, dated
22.10.2020 directing the petitioners to furnish security. As
the petitioners failed to furnish alternative security as
directed by the trial Court and the security furnished by the
petitioners are unencumbered and value of item Nos.2 and
3 of petition schedule properties are not sufficient to satisfy
entire debt, the trial Court affected the interim attachment
order, dated 22.10.2020 subject to mortgage of item Nos.1
to 3 of the petition schedule properties, and as such, there
is no legality or irregularity in the orders passed by the trial
Court and sought to dismiss these Civil Revision Petitions.
12) Having considered the rival contentions
advanced by the respective counsel, the following issues to
be decided for proper adjudication of these Civil Revision
Petitions:
(1) Whether the order of the trial Court, dated
22.10.2020 in I.A.No.275 of 2020 in O.S.No.2 of
2020 and the docket order, dated 25.01.2021 in
the said I.A. is sustainable under law?
(2) Whether the order, dated 22.10.2020 in
I.A.No.275 of 2020 in O.S.No.2 of 2020 and the
docket order, dated 25.01.2021 in the said I.A.
are liable to be set aside?
13) It is not in dispute that the learned trial Judge
ordered attachment of petition schedule properties and a
condition to furnish security for Rs.3,43,73,330/-.
Subsequently, the petitioners furnished security in order to
comply the direction of the trial Court. But, the trial Court
attached item Nos.1 to 3 of the petition schedule properties
subject to mortgage.
14) It is a specific case of the petitioners that the
petitioners executed an agreement, dated 01.01.2017 in
which agreed to pay Rs.2,00,00,000/- (Rupees two crores
only) towards return of amount paid by him in the sale
transaction in addition to give Ac.0-31 cents of land in
S.No.594/1 of Konnamgunta Village, which stands in the
name of 1st petitioner and an extent of 255 sq. yards in
S.No.595 of Nuzvid situated in Konnamgunta road which
stands in the name of 2nd petitioner, who is the wife of the
1st petitioner. In accordance with the terms of the
agreement, the petitioners delivered the possession of the
said properties to the respondent on 20.01.2017. But the
petitioners failed to pay the amount of Rs.2,00,00,000/-
(Rupees two crores only) as agreed by them under
agreement, dated 01.01.2017.
15) The allegation of the respondent is that the
petitioners making efforts to dispose of/alienate the petition
schedule properties to third parties with intention to defeat
the decree to be passed in his favour. If the petitioners are
allowed to alienate the properties, the respondent cannot
recover any amount in the event of passing the decree in
his favour, as the petitioners are not having any other
properties except petition schedule properties.
16) The petitioners contend that the 1st petitioner
having shares in Prudvi Infra Project Private Limited worth
of Rs.4,80,00,000/- and also property admeasuring 20
guntas i.e., 2420 sq. yards in Survey No.55/A situated at
Nanakramguda Village of Serilingampalli Mandal, Ranga
Reddy District worth of Rs.7,26,26,000/- .
17) As seen from the order, dated 22.10.2020 in
I.A.No.275 of 2020 of the trial Court, there is no whisper
with regard to non availability of other properties except
petition schedule properties of the petitioners.
18) The petitioners also furnished security in respect
of worth of Rs.4,80,00,000/- and properties worth of
Rs.7,26,26,000/-. The suit claim is for Rs.3,43,73,330/-.
When the petitioners are having other than petition
schedule properties, the question of malafide intention of
the petitioners to dispose of the petition schedule properties
with intention to defeat the right of the respondent does not
arise.
19) It can be seen from the record, the respondent
not filed any material to show that the petitioners are
making efforts to dispose of the petition schedule
properties. The learned trial Judge did not follow the object
of under Order 38 Rule 5 of CPC in passing order of
attachment before judgment.
20) Order 38 Rule 5 of CPC is extracted hereunder:
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.
21) On careful consideration of the language used in
Order 38 Rule 5, it is clear that because the respondent
having the prima facie case, the attachment cannot be
ordered automatically. Under Order 38 Rule 5 the
respondent has to show that the petitioners have no other
properties and --------
22) Therefore, it is crystal clear that the order of the
trial Court is not in accordance with law. Accordingly,liable
to be set aside.
23) It can be seen from docket order, dated
25.01.2021, even after furnishing security, the trial Court
attached item Nos.1 to 3 of the petition schedule properties
subject to mortgage. The order does not reveal whether
the security furnished by petitioners is sufficient or
insufficient. Without come to such conclusion, the learned
trial Judge attached petition schedule properties.
24) More over, the order reveals the item No.1 of
the petition schedule property has been under mortgage of
Central Bank of India, Hyderabad Branch and Item Nos.2
and 3 are under mortgage of Union Bank of India. Once,
the said properties are under mortgage, for secure debt,
how the trial Judge converted this unsecured debt into
secured debt by attaching the mortgage properties.
25) Thus, the order of the learned trial Judge is
contrary to law and as such, it is liable to be set aside.
26) Accordingly, these two revision petitions are
allowed and the order, dated 22.10.2020 and docket order,
dated 25.01.2021 in I.A.No.275 of 2020 in O.S.No.2 of
2020 are hereby set aside.
There shall be no order as to costs.
As a sequel, miscellaneous applications pending, if
any, in this Writ Petition shall stand closed.
______________________
JUSTICE BATTU DEVANAND
Date:17.08.2021
PGR
THE HON'BLE SRI JUSTICE BATTU DEVANAND
WRIT PETITION No.12727 OF 2021
Date: 17.08.2021
PGR
