Amaladas V.V.S.Mukheswari, vs Vasamsetti Padmavathi,
2022 Latest Caselaw 8729 AP

           HON'BLE SRI JUSTICE SUBBA REDDY SATTI

            CIVIL REVISION PETITION No.1501 of 2022


   Amaladas V.V.S. Mukheswari, D/o Narasimhulu, aged 56 years,
   Police Constable, Kakinada, East Godavari District.
                                                       ... Petitioner

                                Versus

   Vasamsetti Padmavathi, W/o           Govindu, aged 37 years,
   R/o D.No.21-9-9, Brodipeta,          Ramachandrapuram, East
   Godavari District.

                                                      ... Respondent

Counsel for the petitioner               : Sri B.V. Rama Rao
Counsel for respondent                   : Sri K. Rama Koteswara Rao


                                ORDER:

Defendant in the suit filed the present civil revision

petition under Article 227 of the Constitution of India aggrieved

by docket order, dated 18.05.2022 in I.A.No.404 of 2022 in

O.S.No.167 of 2020 on the file of learned Principal Junior Civil

Judge, Ramachandrapuram, East Godavari District.

2. Respondent/plaintiff filed O.S.No.167 of 2020 for recovery

of amount basing on promissory note.

3. Petitioner/defendant filed written statement and is

contesting the suit.

4. Pending the suit, plaintiff filed I.A.No.404 of 2022 under

Order XXXVIII Rule 5 of CPC seeking attachment of petition

schedule property.

5. In the affidavit filed in support of the petition, it was

contended inter alia that petitioner/defendant borrowed an

amount of Rs.6,00,000/- on 06.05.2018 for family expenses and

to discharge sundry debts; that petitioner/defendant executed

promissory note agreeing to repay the same with interest at 24%

per annum; that the respondent/plaintiff came to know that the

petitioner/defendant was indebted to so many people and that

she is trying to alienate the petition schedule property to third

parties. Hence, respondent/plaintiff filed present application

seeking a direction to the petitioner/defendant to furnish third

party security to the suit amount of Rs.9,58,000/- with

subsequent interest and costs within stipulated time failing

which order of conditional attachment of the petition schedule

properties before judgment be passed, till the realization of the

suit amount.

6. The said application was filed on 18.05.2022. Notice was

served on the other side counsel on the same day. Learned

counsel for the petitioner/defendant made an endorsement, on

the petition, seeking time to file counter. However, on the same

day the Court below passed docket order, which reads thus:

"Moreover, if this Court issued this attachment before judgment order, it will not cause any damage to either parties as the Respondent has right to challenge the pronote which was stated by the petitioner/plaintiff and may disprove the case of the petitioner/plaintiff.

Hence, this Court feels that, it is a fit case to issue attachment before judgment to the petition schedule property of respondent/defendant.

By considering the circumstances, considering the apprehension of the petitioner issue attachment of the petition schedule property through Court on payment of process and for filing counter of respondent call on 15.06.2022."

7. Aggrieved by the above order, the present revision is filed.

8. Heard both sides.

9. Learned counsel for the petitioner would contend that

trial Court did not follow the procedure contemplated under

Order XXXVIII Rule 5(1) of CPC and hence, order of attachment

is void under Order XXXVIII Rule 5(4) of CPC. He relied upon

the decision reported in Raman Tech & Process Engg. Co. and

Another v. Solanki Traders1.

10. Learned counsel for the respondent, on the other hand,

would contend that since the petitioner/defendant is trying to

alienate the property, application is filed seeking attachment of

the petition schedule property along with third party affidavits.

The trial Court has rightly ordered attachment on 18.05.2022

and the attachment was effected on 15.06.2022. Learned

counsel for the respondent would further contend that against

the order, civil miscellaneous appeal would lie under Order XLIII

but not revision under Article 227 of the Constitution of India.

11. In the light of the arguments, the point that arises for

consideration is whether the trial Court has followed the

procedure contemplated under Order XXXVIII Rule 5(1) of CPC

while passing the order, dated 18.05.2022?

12. Order XXXVIII Rule 5 of CPC reads thus:

"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

2008 (2) SCC 302

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."

13. A reading of the above provision would indicate that at

any stage of the suit, if the Court is satisfied by an affidavit or

otherwise that the defendant, with an intent to obstruct or delay

the execution of any decree that may be passed against

him/her, is about to dispose of or remove the whole or any part

of his property from the local limits of the jurisdiction, the Court

shall 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, or such portion thereof as may be sufficient to satisfy the

decree and show cause as to why he/she should not furnish

security. The Court may also in the order direct conditional

attachment of the whole or any portion of the property so

specified.

14. Sub-rule 4 of Order XXXVIII Rule 5 contemplates that any

attachment without complying with the provisions of sub-rule

(1), shall be void.

15. The power of court to order attachment before judgment

is attracted only when plaintiff plead and proves that the

defendant is about to dispose of whole or any part of the

property is about to remove from local limits of jurisdiction of

the court. Even though such prima facie is proved, still an

order attachment cannot be issued without following the

procedure mandated in Rule 5 of Order XXXVIII. The Court

must direct the defendant to furnish security in such sum as

may be specified within the time stipulated.

16. Form 5 in Appendix F of CPC deals with issuance of

notice is here with extracted:

No.5

ATTACHMENT BEFORE JUDGMENT, WITH ORDER TO CALL FOR SECURITY FOR

FULFILMENT OF DECREE

(O.38, R5.)

(Title)

To

The Bailiff of the Court.

WHEREAS.......................has proved to the satisfaction of the Court that the defendant in the above suit...........;

These are to command you to call upon the said defendant......................................on or before the................day of......................19....................either to furnish security for the sum of rupees ...............to produce and place at the disposal of this Court when required..................................or the value thereof, or such portion of the value as may be sufficient to satisfy any decree that may be passed against him; or to appear and show cause why he should not furnish security; and you are further ordered to attach the said.................and keep the same under safe and secure custody until the further order of the Court; and you are further commanded to return this warrant on or before the......................day of....... 19....... , with an endorsement certifying the date on which and the manner in which it has been executed, or the reason why it has not been executed.

GIVEN under my hand and the seal of the Court, this....................day of............19..........

Judge

17. Division Bench of composite high court in Yenamala

Chandra Reddy Vs. Nuvvula Chandramouli Naidu2 held as

follows:

17. The first part of the form directs the defendant to furnish security in a particular amount or produce and place at the disposal of the Court the said property or its value or such portion of the value as may be sufficient to satisfy any decree that may be passed against him and also requires the defendant to appear and show cause why he should not furnish security. The first part of the form, therefore, is a re-production of the procedure as to notice envisaged by clause (b) of O. XXXVIII R. 5 (1), but the more important part of the form is the second part and this throws considerable light as to what the legislature meant by the words "conditional attachment". This second part contains a further direction to the Bailiff to attach and it reads as follows:

"...and you are further ordered to attach the said. . . . and keep the same under safe and secure custody until the further order of the court;"

18. It will have to be noticed from the Form that the first part referred to above and the second part need not be contained in every order passed under Order XXXVIII, Rule 5 C. P. C. This is clear from the word also used in Order XXXVIII, Rule 5 (3 ). If the court thinks fit merely to order the defendant to furnish security or show cause why security should not be furnished, the order as drafted in the Form will not contain the second part. It is only where the court thinks that pending further orders, there shall also be an order of attachment, as contemplated by Order xxxviii, R. 5 (3) that the second part of the Form will be included in the directions issued to the bailiff.

18. In the case on hand, the order passed by the trial Court

does not indicate issuance of any show cause notice. The order

impugned as extracted supra indicates that attachment of the

1991 (2) ALT 343

property was ordered directly on the application made by the

respondent/plaintiff without issuing any such show cause

notice. Such an attachment is void under Order XXXVIII Rule

5(4).

19. Apart from the above, as held by the Hon'ble Apex Court,

in Raman Tech & Process Engg. Co. and Another v. Solanki

Traders referred to supra, attachment before judgment under

order XXXVIII Rule 5 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 XXXVIII Rule 5 is not to

convert an unsecured debt into a secured debt. Any attempt by

a plaintiff to utilize the provisions of Order XXXVIII Rule 5 as

leverage for coercing the defendant to settle the suit claim

should be discouraged. Instances are not wanting where bloated

and doubtful claims are realized by unscrupulous plaintiffs by

obtaining orders of attachment before judgment and forcing the

defendants for out-of-court settlements under threat of

attachment.

20. In view of discussion, in the considered opinion of this

Court, the trial Court failed to follow the procedure

contemplated under Order XXXVIII Rule 5(1)(b) while passing

order, dated 18.05.2022. Therefore, the same is void under

Order XXXVIII Rule 5(4). Hence, the order under revision is

liable to be set aside.

21. Civil Revision Petition is allowed setting aside the order,

dated 18.05.2022 in I.A.No.404 of 2022 in O.S.No.167 of 2020

on the file of learned Principal Junior Civil Judge,

Ramachandrapuram. I.A.No.404 of 2022 is restored to its file.

22. The petitioner/respondent shall file counter in I.A.No.404

of 2022 within ten days from today. The trial Court shall

advance the I.A, and dispose of I.A.No.404 of 2022, by following

the procedure contemplated under Order XXXVIII Rule 5 of

CPC, within three weeks from the date of filing the counter. No

costs.

As a sequel, all the pending miscellaneous applications

shall stand closed.

_________________________ SUBBA REDDY SATTI, J

Date :15.11.2022 Furnish C.C. by 17.11.2022 ikn

HON'BLE SRI JUSTICE SUBBA REDDY SATTI

CIVIL REVISION PETITION No.1501 of 2022

Date: 15.11.2022

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