Madras High Court
R.Suseela vs J.Aranganathan on 3 February, 2021
C.R.P.(P.D).No.2347 of 2016
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.02.2021
CORAM:
THE HONOURABLE MR.JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(P.D).No.2347 of 2016
and M.P.No.12087 of 2016
1.R.Suseela
2.Punitha
3.B.Umesh Kumar ...Petitioners
Vs
1.J.Aranganathan
2.B.Madhumitha
3.Assistant Elementary Education Officer
AEO Office, Madanoor, Ambur Taluk
Vellore District. ...Respondents
Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
India to set aside the fair and decretal order passed in I.A.No.95 of 2015 in
O.S.No.112 of 2015, dated 18.02.2016 on the file of the Sub-ordinate Court,
Vaniyambadi, Vellore District.
For Petitioners : PA.Sudesh Kumar
For R1 : Ms.S.Thamizharasi
For R2 & R3 : Given up
ORDER
This Civil Revision Petition is directed as against the fair and
decretal order passed in I.A.No.95 of 2015 in O.S.No.112 of 2015, dated
18.02.2016 on the file of the Sub-ordinate Court, Vaniyambadi, Vellore
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C.R.P.(P.D).No.2347 of 2016
District, thereby allowed the petition for attachment.
2.The 1st respondent filed a suit for recovery of money as against
the petitioners herein. The petitioners are the legal heirs of one
R.Balasubramaniyam. The said R.Balasubramaniyam, having his legally
enforcible debt, for a sum of Rs.4,60,000/- in favour of the 1st respondent
herein. The same was dishonoured for the reason that the funds are
insufficient. After causing notice, the 1strespondent also initiated
proceedings under the Negotiable Instruments Act in C.C.No.152 of 2014,
on the file of the Judicial Magistrate, Ambur. Thereafter the said
R.Balasubramaniyam died. He was working as a Headmaster in
Thenpudupet Village School. While being so the 1st respondent filed a
petition for attachment before Judgment, in respect of the 1st and 2 nd item of
the suit schedule property. In so far as the 1st item is concerned, the 3rd
respondent herein filed counter and undertaken not to dispose the amounts,
such as terminal benefits to the legal heirs of the said R.Balasubramaniyam.
In respect of the 2nd item, the immovable property, which was owned by the
said R.Balasubramaniyam, before his death, he executed settlement deed on
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C.R.P.(P.D).No.2347 of 2016
16.02.2015 in favour of the 3rd petitioner herein. Except the said immovable
property, the deceased R.Balasubramaniyam, did not leave any other
property and in the petition filed before Judgment, petitioners filed their
counter and stated the same thing that the immovable property which was
owned by the deceased R.Balasubramaniyam was settled in favour of the 3 rd
petitioner by the settlement deed dated 16.02.2015 and thereafter he died on
21.04.2015. Therefore, the 3rd petitioner had taken possession of the said
property and he has been in possession and enjoyment of the same.
Therefore, except the 3rd petitioner no one has got any kind of right
whatsoever in the said property.
3.The learned counsel for the petitioners submitted that before
passing orders on attachment before Judgment the Court should exercise the
power vested under Order 38 Rule 5 of CPC, sparingly and carefully. He
also relied upon the Judgment in the case of Raman Tech & Process Engg.
Co. Vs. Solanki Traders [(2008) 2 SCC 302]
"5.The power under Order 38 Rule 5 CPC is a
drastic and extraordinary power. Such power should not
be exercised mechanically or merely for the asking. It
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C.R.P.(P.D).No.2347 of 2016
should be used sparingly and strictly in accordance with
the Rule. The purpose of Order 38 Rule 5 is not to
convert an unsecured debt into a secured debt. Any
attempt by a plaintiff to utilise the provisions of Order 38
Rule 5 as a leverage for coercing the defendant to settle
the suit claim should be discouraged. Instances are not
wanting where bloated and doubtful claims are realised
by unscrupulous plaintiffs by obtaining orders of
attachment before judgment and forcing the defendants
for out-of-court settlements under threat of attachment. ”
4.The Honourable Supreme Court has held that the power under
Order 28 Rule 5 is a drastic and extraordinary power and it should not be
exercised mechanically and merely for the asking. It should be used
sparingly and strictly in accordance with the Rule.
5.In the case on hand, the 1 st respondent already initiated
proceedings under Section 138 of the Negotiable Instruments Act, as against
the deceased R.Balasubramaniam in C.C.No.152 of 2014 on the file of the
Judicial Magistrate, Ambur. After, his demise, the 1st respondent initiated
the present suit for recovery of money as against his legal heirs. Therefore,
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C.R.P.(P.D).No.2347 of 2016
the Court below has rightly exercised the power vested under Order 38 Rule
5 of CPC and ordered attachment before Judgment in I.A.No.95 of 2015 in
O.S.No.112 of 2015 dated 18.02.2016.
6.Therefore, this Court finds no irregularity or infirmity in the
order passed by the Court below. Accordingly, this Civil Revision Petition is
dismissed. No costs. Consequently connected miscellaneous petition is
closed.
7.Further, the suit is of the year 2015, the trial Court is directed to
dispose of the suit within a period of six months from the date of receipt of a
copy of this order.
03.02.2021
Jer
Index:Yes/No
Internet: Yes/No
Speaking Order: Yes/No
To
The Sub-ordinate Court, Vaniyambadi, Vellore District.
http://www.judis.nic.in
C.R.P.(P.D).No.2347 of 2016
G.K.ILANTHIRAIYAN.J,
Jer
C.R.P.(P.D).No.2347 of 2016
and C.M.P.No.12087 of 2016
03.02.2021
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