Sri C Bhaskar Naidu vs Sri Santhosh Srinivasulu ...
2022 Latest Caselaw 9705 Kant

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                                                             WP No. 101722 of 2022


                        IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH

                                DATED THIS THE 27TH DAY OF JUNE, 2022

                                                 BEFORE
                                  THE HON'BLE MR JUSTICE R.DEVDAS
                              WRIT PETITION NO. 101722 OF 2022 (GM-CPC)
                      BETWEEN:

                      SRI C BHASKAR NAIDU,
                      S/O LATE N NARASIMHULU NAIDU,
                      AGED ABOUT 66 YEARS,
                      RESIDING AT 'SRINIVASAM', 30, 8TH CROSS,
                      M.J. NAGAR, HOSAPETE-583203,
                      BELLARY DISTRICT.
                                                                     -    PETITIONER
                      (BY SRI. VENKATESH P. DALWAI, ADVOCATE)

                      AND:

                      SRI SANTHOSH SRINIVASULU SIDDAM SETTY,
                      S/O S.V. SRINIVASULU,
                      AGED ABOUT 36 YEARS,
                      R/A NO. 'OM NIVAS', 5TH CROSS,
                      M.J. NAGAR, NEAR BALAJANEYA TEMPLE,
                      HOSAPETE-583 203
                                                                 -       RESPONDENT
                      (BY SRI. K.L. PATIL, ADVOCATE)
VINAYAKA
BV                           THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND
Digitally signed by
VINAYAKA B V          227 OF THE CONSTITUTION OF INDIA PRAYING TO SET ASIDE THE
Location: Dharwad
Date: 2022.07.01
11:37:03 +0530        ORDER DATED 07.01.2022 IN ON IA.NO.2 UNDER ORDER 38 RULE 5
                      OF CPC IN OS.NO.95/2021 AT ANNEXURE-D PASSED BY THE
                      PRINCIPAL SENIOR CIVIL JUDGE AND JMFC, AT HOSAPETE,
                      BELLARY DISTIRCT & ETC.

                             THIS WRIT PETITION COMING ON FOR PRELIMINARY
                      HEARING THIS DAY. THE COURT MADE THE FOLLOWING.
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                                             WP No. 101722 of 2022


                                ORDER

R.DEVDAS J., (ORAL):

The petitioner is the defendant before the trial Court in O.S.

No. 95/2021 on the file of the learned Prl. Sr. Civil Judge & JMFC,

Hosapete. The petitioner is aggrieved by the impugned order

dated 07.01.2022 passed on I.A. No. 2 filed at the hands of the

respondent-plaintiff under Order XXXVIII Rule 5 r/w Sec. 151 CPC,

seeking conditional attachment before judgment of the land

described in the schedule to the application and to call upon the

defendant to furnish security, in the interest of justice.

2. Learned counsel for the petitioner has drawn attention of this

Court to the provisions contained in Rule 5 of Order XXXVIII and

submits that a plain reading of the provision makes it very clear that

when such an application is made and the Court is satisfied that

the defendant, with intent to obstruct or delay execution of any

decree, is about to dispose of the whole or any part of his property,

the Court may direct the defendant, within a time to be fixed by it,

either to furnish security, any 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

WP No. 101722 of 2022

thereof as may be sufficient to satisfy the decree or to appear and

show cause why he should not furnish security.

3. The learned counsel would therefore submit that in the

impugned order, the trial Court has not specified the sum to be

secured and has not fixed the time to furnish bank guarantee.

Moreover, the learned counsel would point out to Sub Rule (4)

which expressly provides that if an order of attachment is made

without complying with the provision of Sub Rule (1), such

attachment would be void. The learned counsel would also place

reliance on a judgment of this Court in the case of Palghat Rolling

Mills (P) Ltd. Vs. Visveswarayya Iron and Steel Ltd. (ILR 1995

KAR 3983) and submits that while analyzing the provision

contained in Order XXXVIII Rule 5 CPC, this Court has held that

mere mentioning of the apprehension in the affidavit is not

sufficient to hold that the defendant is intending to dispose of the

properties with a view to obstruct or cause delay in the execution of

the decree which may be passed against him. It was held that the

affidavit must state the source of the information or apprehension.

Unless the source is disclosed the Court should not hasten to pass

an order under Order XXXVIII Rule 5 CPC. It was therefore held

WP No. 101722 of 2022

that since the affidavit did not meet the mandatory requirements of

Order XXXVIII Rule 5 CPC, therefore the Court could not have

passed an order of attachment before judgment.

4. Per contra, learned counsel for the respondent/plaintiff seeks

to contend that the trial Court has noticed in the impugned order

that although averments were made by the plaintiff in the affidavit

accompanying the application, the defendant did not chosen to

meet the averments in the objections filed to the application. It was

noticed that nowhere in the objections filed at the hands of the

defendant did he seek to contend that he had no intention to

dispose of the property. Under such circumstances, the trial Court

has proceeded to pass the impugned order directing the

respondent-defendant to furnish a bank guarantee or other security

in respect of the suit claim till the order of attachment before

judgment is in force.

5. Having heard the learned counsels and on perusing the

petition papers, this Court finds that there is substance in the

contention of the learned counsel for the petitioner-defendant.

When Sub-Rule (4) of Rule 5 CPC makes it very clear and specific

that if an order of attachment is made without complying with the

WP No. 101722 of 2022

provisions of Sub Section (1), such attachment shall be void. It is

also clear from Sub Rule (1) of Rule 5 that before the Court would

proceed to pass an order of attachment before judgment, the Court

was required to call upon the defendant either to furnish security in

respect of a sum which was also required to be specified and a

time frame was also required to be fixed by the Court.

6. Moreover, the learned counsel for the petitioner has also

been able to point out from the application filed by the plaintiff that

the respondent-plaintiff has admitted that the approximate market

value of the property sought to be attached is Rs. 6 crores and the

claim of the plaintiff is for a sum of Rs.2,61,23,800/- along with

interest. Therefore, it was the duty of the respondent-plaintiff to

have specified the amount calculated along with interest or the

Court should have calculated the said sum and specified the same

in the order, calling upon the petitioner/defendant to furnish the

bank guarantee or any other security for the said sum. Both these

requirements as contemplated under sub-Rule (1) having not been

specified, in terms of Sub Rule (4), the impugned order of

attachment would be void.

WP No. 101722 of 2022

Consequently, the writ petition is allowed. The impugned

order dated 07.01.2022 passed on I.A. No. 2 in O.S. No. 95/2021

by the learned Prl. Sr. Civil Judge and JMFC, Hosapete, is hereby

quashed and set aside.

Nevertheless, the trial Court is directed to reconsider the

application in the light of the observation made hereinabove and for

compliance of the mandatory requirements of Rule 5 of Order

XXXVIII CPC and thereafter proceed to pass necessary orders.

Ordered accordingly.

SD JUDGE BVV