Karnataka High Court
Sri Vijay vs Mahadeswaraswamy on 19 June, 2025
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NC: 2025:KHC:21235
W.P. No.48315/2018
C/W W.P. No.48313/2018
W.P. No.48314/2018
HC-KAR
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 19TH DAY OF JUNE, 2025
BEFORE
THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
WRIT PETITION NO.48315/2018 (GM-CPC)
C/W
WRIT PETITION NO.48313/2018 (GM-CPC)
WRIT PETITION NO.48314/2018 (GM-CPC)
IN W.P. No.48315/2018:
BETWEEN:
SRI. VIJAY
S/O MAHADEVAPPA
AGED ABOUT 40 YEARS
R/AT D.NO.273, 1ST FLOOR
Digitally signed
3RD CROSS, T.K.LAYOUT
by RUPA V
MYSURU-570 009.
Location: High
Court of AND ALSO AT:
karnataka ASSISTANT PROFESSOR
DEPARTMENT OF KANNADA
GOVT. FIRST GRADE WOMEN'S COLLEGE
K.R. NAGARA-571 602
MYSURU DISTRICT.
...PETITIONER
(BY SRI. MANJUNATH PRASAD V, ADV.,)
AND:
MAHADESWARASWAMY
INFRATECH AND HOUSING DEVELOPERS
PVT. LTD. SITUATED AT NO.55
3RD CROSS, 1ST MAIN, GURUKULA LAYOUT
(BEHIND J.P.NAGARA OUTER RING ROAD)
MYSURU-570 031
REPT. BY ITS MANAGING DIRECTOR
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NC: 2025:KHC:21235
W.P. No.48315/2018
C/W W.P. No.48313/2018
W.P. No.48314/2018
HC-KAR
SRI. N.S. NANJUNDASWAMY
S/O SUBRAMANYA
...RESPONDENT
(BY SRI. D. SESHADRI, ADV., [ABSENT])
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI TO QUASH THE IMPUGNED ORDER OF THE
ATTACHMENT OF BEFORE JUDGMENT DATED 6.3.2018 PASSED IN
I.A.NO.1 IN THE ORIGINAL SUIT IN O.S.NO.241/2018 ON THE FILE
OF HON'BLE II ADDL. SR. CIVIL JUDGE AT MYSURU VIDE ANNEX-A &
ETC.
IN W.P. NO.48313/2018:
BETWEEN:
SRI. MALLESH .G
S/O D.C. GOWDAPPA
AGED ABOUT 45 YEARS
R/AT D.NO.126, 4TH BLOCK
RAMASWAMY LAYOUT
NANJANGUD TOWN-571301
MYSURU.
AND ALSO AT:
ASSISTANT PROFESSOR
DEPARTMENT OF ECONOMICS
GOVT. FIRST GRADE COLLEGE
GUNDLUPETE TOWN-571111.
...PETITIONER
(BY SRI. MANJUNATH PRASAD V, ADV.,)
AND:
MAHADESHWARASWAMY
INFRATECH AND HOUSING
DEVELOPERS PVT. LTD.
SITUATED AT NO.55, 3RD CROSS
1ST MAIN, GURUKULA LAYOUT
(BEHIND J P NAGARA OUTER
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NC: 2025:KHC:21235
W.P. No.48315/2018
C/W W.P. No.48313/2018
W.P. No.48314/2018
HC-KAR
RING ROAD), MYSURU-570 031.
REPT. BY
SRI. N.S. NANJUNDASWAMY
S/O SUBRAMANYA.
...RESPONDENT
(BY SRI. D. SESHADRI, ADV., [ABSENT])
THIS W.P. IS FILED UNDER ARTICLE 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI TO QUASH THE IMPUGNED ORDER OF THE
ATTACHMENT OF BEFORE JUDGMENT DATED 22.02.2018
PASSED IN I.A.NO.2 IN THE ORIGINAL SUIT IN
O.S.NO.182/2018 ON THE FILE OF HON'BLE II ADDL. SENIOR
CIVIL JUDGE & CJM, AT MYSURU, VIDE ANNEXURE-A & ETC.
IN W.P. NO.48314/2018:
BETWEEN:
SRI. DR. KUMARA
S/O VEERABHADRAPPA
AGED ABOUT 42 YEARS
R/AT NO.82, RAJENDRA KRUPA
3RD STAGE, D BLOCK, JP NAGAR
MYSURU 570031.
AND ALSO AT:
ASSISTANT PROFESSOR
DEPARTMENT OF KARNATAKA
GOVT. WOMENS COLLEGE
MANDYA 571 401.
...PETITIONER
(BY SRI. V.M. PRASAD, ADV.,)
AND:
MAHADESWARASWAMY
INFRATECH AND HOUSING
DEVELOPERS PVT. LTD.
SITUATED AT NO.55
3RD CROSS, 1ST MAIN
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W.P. No.48315/2018
C/W W.P. No.48313/2018
W.P. No.48314/2018
HC-KAR
GURUKULA LAYOUT
(BEHIND JP NAGARA OUTER RING ROAD)
MYSURU 570031.
REPT. BY ITS MANAGING DIRECTOR
SRI. N.S. NANJUNDASWAMY
S/O SUBRAMANYA.
...RESPONDENT
(BY SRI. D. SESHADRI, ADV., [ABSENT])
THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE
CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF
CERTIORARI TO QUASH THE IMPUGNED ORDER OF THE
ATTACHMENT OF BEFORE JUDGMENT DATED 01.03.2018
PASSED IN I.A.NO.1 IN THE ORIGINAL SUIT IN
O.S.NO.223/2018 ON THE FILE OF HON'BLE II ADDL. SENIOR
CIVIL JUDGE, AT MYSURU, VIDE ANNEXURE-A & ETC.
THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING
IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:
CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL
ORAL ORDER
W.P.No.48315/2018 is filed challenging the order dated
06.03.2018 passed on I.A.No.1 in O.S.No.241/2018 by the II
Additional Senior Civil Judge and CJM, Mysuru (for short, 'the
trial Court').
W.P.No.48314/2018 is filed challenging the order dated
01.03.2018 passed on I.A.No.1 in O.S.No.223/2018 by the trial
Court.
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W.P.No.48313/2018 is filed challenging the order dated
22.02.2018 passed on I.A.No.2 in O.S.No.182/2018 by the trial
Court.
2. Sri.Manjunath Prasad V., learned counsel for the
petitioners in these petitions submits that the issues involved in
these petitions are similar, hence they are clubbed together. It
is submitted that respondent-plaintiff has filed the suit for
recovery of money against the petitioners herein and in the
said suits, he has filed an application under Order XXXVIII
Rules 5 and 6 of CPC seeking for attachment of the properties
before the judgment. The trial Court, even before issuing
notice, passed orders on those applications without assigning
any reasons. It is further submitted that the orders impugned
clearly indicate that the petitioners were directed to furnish
security for the suit claim on the next date of hearing and on
failure of which, the order of attachment would become
absolute, but by the next date of hearing, the suit summons
could not be served on the petitioners. However, as per the
impugned orders, the attachment became absolute. It is also
submitted that the approach of the trial Court in passing the
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order of attachment before the judgment is contrary to the
settled principles of law and the principles enumerated in Order
XXXVIII Rules 5 and 6 of CPC. It is submitted that in the
application seeking for attachment it is not indicated that the
petitioners are making an attempt to dispose of their
properties, which would defeat the probable decree in favour of
the respondents. In the absence of any such exercise by the
trial Court, the impugned orders are required to be interfered
with by this Court. It is submitted that in one of the petitions
i.e., in W.P.No.48313/2018, this Court has stayed the
impugned order assailed in the said writ petition.
3. There is no representation for the respondent-
plaintiff.
4. I have heard the arguments of the learned counsel
for the petitioners and meticulously perused the material
available on record. I have given my anxious consideration to
the submissions advanced.
5. In all these petitions, the petitioners are challenging
the impugned orders wherein the trial Court has allowed the
applications filed by the respondent under Order XXXVIII Rules
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5 & 6 of CPC. A perusal of the affidavits accompanying the said
applications filed by the respondent does not indicate that the
petitioners are about to dispose of the whole or any part of
their properties or are about to remove whole or any part of the
property from the local jurisdiction of the Court. However, the
trial Court, without even providing an opportunity to the
petitioners, on the first day itself has passed a conditional order
of attachment on the said applications. One of such impugned
order passed by the trial Court is extracted as under:
"It is ordered to attach the application schedule
property conditionally.
The defendant is hereby directed to furnish
security for suit claim on the next date of hearing. If
the defendant fail to furnish security, order of
attachment before judgment made absolute. Issue
attachment order and notice on IA no.1 returnable
by 2.06.2018"
6. The aforesaid order clearly indicates that the
petitioners are directed to furnish security for the suit claim on
the next date of hearing. If the petitioners failed to furnish the
security, the order of attachment before judgment would be
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made absolute and be ordered for issuance of notice. The order
sheet indicates that thereafter on 2-3 dates of hearing, the suit
summons could not be served on the petitioners. In other
words, the aforesaid order of the trial Court indicates that if the
petitioners failed to furnish the security on the next date of
hearing, the order of attachment would become absolute. In
my considered view, the approach of the trial Court in passing
an order on the applications under Order XXXVIII Rule 5 of CPC
is without any reasons and without there being any satisfaction
that the petitioners are likely to dispose of the property which
would lead to defeat the probable decree that the respondent
may obtain from the Court. In the absence of any satisfaction
of the trial Court as required under Order XXXVIII Rule 5 of
CPC, in my considered view, the petitions deserves to be
allowed.
7. It would be useful to refer to the decision of this
Court in the case of Palghar Rolling Mills (P) Ltd. Vs.
Visveswarayya Iron and Steel Ltd.1, wherein paragraph
Nos.8 and 9 reads as under:
MFA 724 c/w CRP 1258 of 1983 dated 24th July 1985
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"8. The mandatory essentials of Order 38, Rule 5
are: (i) the Court must be 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, (ii) is about to dispose of the whole or any
part of his property, or (iii) is about to remove the whole
or any part of the property from the local limits of the
jurisdiction of the Court. Therefore, the most essential
requirement of Order 38, Rule 5 is the subjective
satisfaction of the Court regarding the requirements
mentioned above. Order 38, Rule 5, in my opinion, is a
mandatory provision demanding of the Court to satisfy
itself first that the defendant is intending to obstruct or
delay the execution of the decree that may be passed
against him. If the order passed by the Court does not
speak or show that the Court has applied its mind to the
requirements of Order 38 Rule 5 C.P.C. or if the order
passed by the Court below does not show clearly that it
has considered the material on record, or if the order
does not show that the Court is satisfied that the
defendant with intent 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 the property, the
order would be in violation of Order 38, Rule 5 CPC. Order
38, Rule 5 as it stood before the amendment in 1976,
would have at the most rendered such order irregular.
But, now sub rule 4 inserted by Section 85(1) of the Act
104 of 1976 reads that if an order of attachment is made
without complying with the provisions of sub-rule (1) of
Rule 5 of Order 38, such attachment shall be void. Sub-
rule (4) has been inserted with a view to see that the
Courts do not pass such an extra-ordinary order in a
cavalier manner and without satisfying themselves about
the requirements of Order 38, Rule 5.
9. The order passed by the Court below has been
extracted above. There is nothing in it to show that the
Court has even bothered to go through the affidavit filed
by the plaintiff. It has not even chosen to consider
whether any material has been let-in by the plaintiff to
show that the defendant with intent 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
(ILR 1985 Kar 3989)
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property. Therefore, the order passed by the Court below,
in my opinion, appears to have been passed in a most
cavalier manner and without realising the consequences
that might flow from the attachment order. The order has
been passed nearly about 7 years after the amendment.
The Court passing the order of attachment before
judgment should bear in mind that any attachment order
passed without complying with sub-rule (1) shall be void.
Therefore, the Courts which are armed with vast powers,
should acquaint themselves with the amendments and
should scrupulously follow the mandatory requirements of
law. If the Court, inspite of sub-rule (4) passes an order
in a cavalier manner, such an order must be struck down
in the interest of administration of justice as void.
Therefore, it is concluded that the order of attachment
before judgment passed by the Court below is void.
Therefore, all the proceedings that have followed such a
void order, will have to be struck down."
8. Keeping in mind the enunciation of law laid down by
this Court in the aforesaid judgment, I am of the considered
view that the trial Court has failed to consider the requirements
of Order XXXVIII Rule 5 of CPC while passing the impugned
orders. Absolutely no reasons have been assigned in the
impugned orders. In the absence of the same, the impugned
orders do not survive the scrutiny of law. Hence, I proceed to
pass the following:
ORDER
i. Writ petitions are allowed.
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ii. The impugned order dated 06.03.2018 passed
on I.A.No.1 in O.S.No.241/2018; order dated
01.03.2018 passed on I.A.No.1 in
O.S.No.223/2018 and the order dated
22.02.2018 passed on I.A.No.2 in
O.S.No.182/2018 by the II Additional Senior
Civil Judge and CJM, Mysuru, are hereby set
aside.
iii. The trial Court is directed to reconsider the
said applications, if the respondent insists to
consider the same, in accordance with law after
following the mandate of law.
Sd/-
(VIJAYKUMAR A. PATIL)
JUDGE
BSR
