Sri Revanna vs Smt Sunanda
2022 Latest Caselaw 4235 Kant

    IN THE HIGH COURT OF KARNATAKA AT BENGALURU

          DATED THIS THE 11TH DAY OF MARCH, 2022

                         BEFORE

          THE HON'BLE MR. JUSTICE E.S. INDIRESH

      WRIT PETITION NO.5527 OF 2022 (GM-CPC)

BETWEEN

    1. SRI REVANNA
       AGED ABOUT 68 YEARS
       S/O BEERAIAH

    2. GOWRAMMA
       AGED ABOUT 56 YEARS
       W/O REVANNA

    3. PUNEETH
       AGED ABOUT 32 YEARS
       S/O REVANNA

       ALL ARE R/AT NO.312/25
       6TH CROSS, VIVEKANANDA NAGARA
       CHANNAPATNA

       ALSO R/AT SREE WOOD WORKS
       RAMANUJA COMPLEX
       11TH CROSS,
       MYSORE ROAD
       BENGALURU
                                           ...PETITIONERS

(BY SRI NARENDRA S, ADVOCATE)
                                  2




AND

SMT. SUNANDA
AGED ABOUT 48 YEARS
W/O SHIVARAJU
R/O HANUMAPORADODDI VILLAGE
MALUR HOBLI, CHANNAPATNA TALK
RAMANAGARA DISTRICT.
                                                   ....RESPONDENT

     THIS WRIT PETITION IS FILED UNDER ARTICLE 227 OF
THE CONSTITUTION OF INDIA PRAYING TO QUASH THE ORDER
DATED 11TH FEBRUARY, 2022 PASSED BY THE CIVIL JUDGE AND
JMFC, IN CHANNAPATNA IN OS.NO.176 OF 2021 PER ANNEXURE
G AND ETC.,

     THIS PETITION COMING ON FOR PRELIMINARY HEARING,
THIS DAY, THE COURT MADE THE FOLLOWING:

                             ORDER

This petition is filed by the defendants, challenging the

order dated 11th February, 2022 passed in OS No.176 of 2021 by

the Civil Judge and JMFC at Channapatna, allowing IA.2.

2. The plaintiff has filed suit for recovery of sum of

Rs.12,00,000/- from the defendants. The apprehension of the

plaintiff is that the defendants are likely to alienate the property

or create third-party interest insofar as the suit schedule

property, which may result in execution of the decree that may

be passed in the trial Court. Accordingly, the plaintiff has filed

application in IA.2 under Order XXXVIII Rule 5 of the Code of

Civil Procedure. The defendants resisted the application. The

trial Court, after considering the material on record, by order

dated 11th February, 2022 issued notice to the defendants to

furnish security to a sum of Rs.12,00,000/- on or before 11th

March, 2022. Feeling aggrieved by the same, defendants have

presented this Writ Petition.

3. I have heard Sri Narendra S., learned counsel

appearing for the petitioners. It is the submission of the learned

counsel appearing for the petitioners that there was no necessity

for the trial Court to issue notice insofar as attachment of

property belonging to the defendant as per the impugned order

dated 11th February, 2022 and as such, he placed reliance on the

judgment of this Court in the case of ASHISH KRISHNASWAMY

v. MONEY FOCUS INFRASTRUCTURE PRODUCTS PRIVATE

LIMITED, BANGALORE AND OTHERS reported in ILR 2021 KAR

2491 and contended that there is no compliance of sub rule (1)

of Rule 5 of Order XXXVIII of Code of Civil Procedure and

accordingly, he sought for interference by this Court in this Writ

Petition.

4. Heard the learned counsel for the petitioner and I have

carefully considered the factual aspects of the case. Suit is filed

for recovery of sum of Rs.12,00,000/- and the plaintiff has filed

application seeking attachment before judgment. In view of the

submission made by the learned counsel appearing for the

petitioner, I have considered the language employed in Order

XXXVIII Rule 5 of Code of Civil Procedure, wherein it is stated

that, if the court is satisfied by affidavit or otherwise that the

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

any decree that may be passed against him, may direct the

defendant, within a time to furnish security, in such sum as may

be specified in the order. In view of the language employed

referred to above, I am of the view that the trial Court is

justified in passing the impugned order, which does not call for

any interference in this petition. I have also considered the law

declared by this Court in the judgment referred to above,

wherein in the case on hand, the trial Court has given reasons

for issuance of attachment before judgment on the ground that

the subject matter in the suit property is the only property

belonging to the defendant and in the event if the defendant is

allowed to alienate the same, the decree that may be passed by

the trial Court shall become infructuous. I that view of the

matter, I do not find any illegality in the order passed by the trial

Court. Writ petition is accordingly dismissed.

Sd/-

JUDGE

lnn