Madras High Court
D.Rajamohan vs G.Subbarayan on 23 June, 2021
C.R.P.(P.D).No.3683 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 23.06.2021
CORAM
THE HON'BLE Mr. JUSTICE G.K.ILANTHIRAIYAN
C.R.P.(PD) No. 3683 of 2018
and CMP No.20513 of 2018
D.Rajamohan ... Petitioner
Vs
G.Subbarayan ... Respondent
Prayer :- Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order dated
03.07.2018 made in I.A.No.152 of 2018 in O.S.No.680 of 2017 on the
file of the I Additional Sub Court, Villupuram.
For Petitioner : Mr.R.Gururaj
For Respondent : Mr.C.Munusamy
ORDER
This Civil Revision Petition is filed against the fair and decreetal
order dated 03.07.2018 made in I.A.No.152 of 2018 in O.S.No.680 of
2017 on the file of the I Additional Sub Court, Villupuram, thereby
allowing the petition for attachment before judgment in respect of leave
salary encashment.
2. The respondent filed a suit on the pro-note executed by the
https://www.mhc.tn.gov.in/judis/
C.R.P.(P.D).No.3683 of 2018
petitioner. While pending suit, the respondent filed a petition for
attachment before judgment under Order 38 Rule 5 of CPC read with
Section 151 of CPC. The respondent stated that the petitioner was
working as Junior Bailiff in the Principal District Court, Chidambaram
and he has about to retire from service on 30.06.2018. Therefore,
directed the petitioner to furnish security for a sum of Rs.2,72,692.50/-
failing which, the leave salary encashment has to be attached. Order 38
Rule 5 meant for the immovable property. It is relevant to extract the
provisions under Order 38 Rule 5, hereunder:-
“5. Where defendant may be called upon
to furnish security for production of property :
(1) Where, at any stage of a suit, the Court is
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.
(a) is about to dispose of the whole or any
part of his property, or
(b) is about to remove the whole or any part
of his property from the local limits of the jurisdiction
of the Court, the Court may direct the defendant, within
a time to be fixed by it, either to furnish security, in such
sum as may be specified in the order, to produce and
place at the disposal of the Court, when required, the
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C.R.P.(P.D).No.3683 of 2018
said property or the value of the same, or such portion
thereof as may be sufficient to satisfy the decree, or to
appear and show cause why he should not furnish
security.
(2) The plaintiff shall, unless the Court
otherwise directs, specify the property required to be
attached and the estimated value thereof.
(3) The Court may also in the order direct the
conditional attachment of the whole or any portion of
the property so specified.
(4) If an order of attachment is made without
complying with the provisions of Sub-rule(1) of this
rule, such attachment shall be void.
3. Whereas in the present suit, the Court below attached the
leave salary encashment of the petitioner, that too before judgment.
Now, both the counsel on record represented that the main suit itself is
posted for arguments.
4. Considering the above, the order dated 03.07.2018 passed
by I Additional Sub Court, Villupuram in I.A.No.152 of 2018 in
O.S.No.680 of 2017, is hereby set aside and the Civil Revision Petition is
allowed. However, the learned counsel for the respondent would submit
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C.R.P.(P.D).No.3683 of 2018
that if the petitioner is allowed to withdraw the leave salary encashment,
nothing is available with the petitioner to recover the suit amount. The
learned counsel for the petitioner also undertakes that the petitioner shall
not withdraw the leave salary encashment, till the disposal of the suit.
The said undertaking is hereby recorded. The Court below is directed to
dispose of the application and also the main suit, within a period of three
months from the date of receipt of a copy of this order. No order as to
costs. Consequently, connected Miscellaneous Petition is closed.
23.06.2021
lpp
Index:Yes/No
Internet:Yes/No
Speaking Order: Yes/No
To
The I Additional Sub Judge,
Villupuram
G.K.ILANTHIRAIYAN.J,
https://www.mhc.tn.gov.in/judis/
C.R.P.(P.D).No.3683 of 2018
lpp
C.R.P.(PD) No. 3683 of 2018
and CMP No.20513 of 2018
23.06.2021
https://www.mhc.tn.gov.in/judis/
