Order 38 vs Unknown
2023 Latest Caselaw 3782 AP

               THE HON'BLE MS JUSTICE B.S.BHANUMATHI

                CIVIL REVISION PETITION No.747 of 2022

ORDER:

This revision petition is filed under Article 227 of the Constitution

of India against the notice/order dated 08.04.2022 in I.A.No.248 of 2022 in

O.S.No.23 of 2022 on the file of the Court of Senior Civil Judge,

Mangalagiri.

2. The respondent filed suit for recovery of the amount based on a

promissory note. Along with the suit, I.A.No.248 of 2022 was filed under

Order 38, Rule 5 CPC for attachment of the petition schedule property of

the defendant pending disposal of the suit. On 08.04.2022, the trial Court

passed an order directing the respondent/defendant to furnish third party

security for Rs.34,27,500/- on or before three (3) days, failing which the

petition schedule property to be attached.

3. Having aggrieved by the order, this revision petition is filed on the

ground that the trial Court failed to consider the settled legal proposition for

passing an order under Order 38 Rule 5 which is a drastic remedy and that

the trial Court ought to have decided the application on merits. After

considering the counter of the respondent and further that the plaintiff has

no bona fides in filing the interlocutory application and that it is only a lever

of coercion and oppression.

4. The learned counsel for the petitioner submitted that the order

was passed by the trial Court in a very mechanical and routine manner

without befitting grounds for passing an order under Order 38 Rule 5 CPC.

5. The petition was opposed by the respondent.

CRP No.747 of 2022

6. The petition in I.A.No.248 of 2022 was supported by the affidavit

of the petitioner/plaintiff about the need to pass an order of attachment

before judgment. After considering the material before the Court, a notice

was ordered to furnish the security within the given time and to attach the

property only in case of failure to furnish the security. Thereafter, the

revision petition filed and interim order of stay was granted on 12.04.2022.

Thereafter, the interim order has been extended from time to time.

7. The learned counsel for the petitioner submitted that so far

counter has not been filed before the trial Court. From the record, it is not

known whether the order of attachment was affected or not after completion

of the stipulated period in the notice and before the order of stay was

granted by this Court. Be that as it may, since long time passed after

ordering the impugned order, the matter can be disposed of on merits after

the revision petitioner/defendant files the counter in I.A.No.248 of 2022.

8. As such, this revision petition is disposed of directing the trial

Court to dispose of I.A.No.248 of 2022 within 15 (fifteen) days from filing of

the counter by the revision petitioner/defendant who shall file his counter

within a week from the receipt of copy of this order.

Miscellaneous Petitions, if any pending, in this Civil Revision Petition,

shall stand closed.

___________________________ JUSTICE B.S.BHANUMATHI Date : 02-08-2023

Note: Issue CC by 04.08.2023 B/o PNV