Sk.Ameer Basha vs Manthana Vani And Another
2022 Latest Caselaw 7519 AP

IN THE HIGH COURT OF ANDHRA PRADESH :: AMARAVATHI

       HONOURABLE SRI JUSTICE NINALA JAYASURYA

      CIVIL REVISION PETITION Nos.140 & 423 of 2022

C.R.P.No.140 of 2022
Sk.Ameer Basha                                ....Petitioner/3 rd party

     Versus
Manthana Vani and Another                             ....Respondents/

plaintiff & defendant

Counsel for the petitioner : Mr.J.Prabhakar, Senior Counsel, Assisted by Smt.G.Padmavathi Srinivas

Counsel for the 1st respondent : Mr. Tandava Yogesh

C.R.P.No.423 of 2022 Dasari Siva Kumari ....Petitioner/defendant

Versus

Manthana Vani ...Respondent/plaintiff

Counsel for the petitioner : Mr.P.Raja Sekhar

Counsel for the respondent : Mr. Tandava Yogesh COMMON ORDER:

These two Revisions Petitions have been filed aggrieved by a

docket Order dated 25.02.2021 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                          NJS,J
                                                       CRP_140 & 423_2022

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 dated

25.02.2022 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/- on the

strength of a Pronote dated 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 dated 25.02.2021:

"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 10.03.2021."

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.

                                     3                         NJS,J
                                                   CRP_140 & 423_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 dated 19.04.2003, 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 12.03.2009. 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 dated 30.07.2010, confirmed the 4 NJS,J CRP_140 & 423_2022

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 25.08.2014

and on further appeal, the Hon'ble Supreme Court dismissed

S.L.A.(C)No.7348 of 2015 vide Order dated 27.04.2015. 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 dated

19.01.2017. 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 dated 19.04.2003, 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 04.10.2021

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, 5 NJS,J CRP_140 & 423_2022

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 27.02.2021, though the attachment order was passed on

25.02.2021. 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 6 NJS,J CRP_140 & 423_2022

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, dated 19.04.2003

and also execution of Sale Deed dated 04.10.2021, 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 dated 25.02.2021. 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 Company1, Surender Singh Bajaj v. Kitty Steels

Limited and another2, Mandala Suryanarayana @ Babji v. Barla

Babu Rao3, Savita Chemicals (P) Ltd., v. Dyes & Chemical

Workers' Union and Another4 and Himalayan Coop.Group

Housing Society v. Balwan Singh and Others5, Premraj Mundra

v. Md.Maneck Gazi and Others6, M/s.R.B.M.Pati Joint Venture v.

1 2008(2) SCC 302 2 2002(3) ALD 191(DB) 3 2010(2) ALD 417(DB) 4 (1999) 2 SCC 143 5 (2015) 7 SCC 373 6 AIR 1951 Calcutta 156 7 NJS,J CRP_140 & 423_2022

M/s.Bengal Builder Opposite Party7, The Nellimarla Jute Mills

Co. Ltd., v. Sree Mahaveer Rice and Oil Mills8, Skoda Auto India

Pvt. Ltd., v. St.Antony's Trading Company and Others9 and

Sports Authority of A.P., Hyderabad v. Regal Sports Company,

Secunderabad10.

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

7 AIR 2004 Calcutta 58 (DB) 8 AIR 1989 AP 214 9 2018 2 CurCC 404(DB) 10 (2008) 6 ALD 759 8 NJS,J CRP_140 & 423_2022

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 dated

25.02.2021 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.

                                          9                            NJS,J
                                                           CRP_140 & 423_2022



13.   Insofar     as     the      contention       with     regard      to   non-

compliance/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 10 NJS,J CRP_140 & 423_2022

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 dated 22.02.2021 and

25.02.2021 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 11 NJS,J CRP_140 & 423_2022

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. 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 12 NJS,J CRP_140 & 423_2022

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. 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 13 NJS,J CRP_140 & 423_2022

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 14 NJS,J CRP_140 & 423_2022

of the petitioners and the same deserves acceptance. Though, it

appears that the Order of attachment dated 25.02.2021 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.

                                    15                        NJS,J
                                                  CRP_140 & 423_2022

26. For the conclusions arrived at supra, the Docket Order dated

25.02.2021 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.

                                             __________________
                                             NINALA JAYASURYA, J
Date: 30.09.2022
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                              16                      NJS,J
                                          CRP_140 & 423_2022



      THE HON'BLE SRI JUSTICE NINALA JAYASURYA

Civil Revision Petition Nos.140 and 423 of 2022 Date: 30.09.2022

BLV