Madras High Court
Kathiravan vs Raja on 30 November, 2021
C.R.P(PD)(MD) No.528 of 2021
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 30.11.2021
CORAM
THE HONOURABLE MS.JUSTICE P.T.ASHA
C.R.P(PD) (MD)No.528 of 2021
and
C.M.P(MD) No.2808 of 2021
Kathiravan ... Petitioner
Vs.
Raja ... Respondent
PRAYER:- Civil Revision Petition filed under Article 227 of
Constitution of India, to call for the records and set aside the fair and
decreetal order dated 11.02.2021 passed in I.A.No.1 of 2020 in O.S.No.
13 of 2020 on the file of 1st Additional District Sessions Court,
Thoothukudi and allow this Civil Revision with costs throughout.
For Petitioner : Ms.S.Bavishya
for Mr.R.Mahewsaran
For Respondent : Mr.M.P.Senthil
for Mr.J.Ashok
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C.R.P(PD)(MD) No.528 of 2021
ORDER
The defendant who has been directed by order in I.A.No.1 of 2020
in O.S.No.30 of 2021 to furnish security to the tune of Rs.15 lakhs,
failing which, attachment of the schedule mentioned properties was
ordered by the learned 1st Additional District Sessions Judge,
Thoothukudi, is the petitioner before this Court.
2.The facts in brief are herein below set out :-
(i) The respondent had filed a suit in O.S.No.13 of 2020 on the file
of 1st Additional District Munsif, Thoothukudi, for a recovery of a sum of
Rs.12,33,583/-, together with interest at 12% on the sum of
Rs.11,30,000/- from the date of plaint till the date of decree and
thereafter at 6% till the date of payment. Pending the suit, the
respondent/plaintiff had filed I.A.No.1 of 2020 seeking attachment
before the judgment of the petition mentioned properties.
(ii)In the affidavit filled in support of the petition, the
plaintiff/respondent herein had contended that he has come to learn that
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C.R.P(PD)(MD) No.528 of 2021
the petitioner/defendant is taking emergent steps to alienate the suit
schedule property and therefore, if the property is alienated, it would
cause irreparable loss to the respondent as he will not be able to recover
his due even if the decree is granted.
(iii)The petitioner had filed a counter inter alia contending that no
evidence has been adduced to show that steps have been taken to alienate
the suit property. Further he would submit that the first item of property
is his residence and there was no chance of him alienating the same.
Further, the second item is a joint property belonging both to the
petitioner herein as well as his brother, which also cannot be alienated by
him. He would therefore submit that the circumstances contemplated
under Order 38 Rule 5 CPC have not been complied with and therefore,
the petition has to be dismissed.
(iv) The 1st Additional District Munsif, Thoothukudi, allowed the
application and directed the petitioner herein to furnish security to the
tune of Rs.15 lakhs on or before 25.02.2021, failing which, directed
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C.R.P(PD)(MD) No.528 of 2021
attachment of the petition mentioned property. The learned Judge has
taken note of the fact that the petitioner herein was indebted to several
persons and further, he had filed an affidavit to permit him to raise funds
by mortgaging the property. The learned Judge therefore felt that the
respondent had prima facie made out a case and therefore, had passed the
necessary orders.
3.When the matter had come up before this Court, this Court had
directed the petitioner to file an affidavit stating that he would not
alienate or encumber the suit property pending disposal of the suit in
O.S.No.13 of 2020 on the file of the 1st Additional District Munsif,
Thoothukudi. The petitioner had filed an affidavit on 15.11.2021,
wherein he had undertaken not to alienate the suit property, however he
had not given an undertaking that he would not encumber the property.
Therefore, the petitioner's counsel was asked to get affidavit to include
the statement that the petitioner would not encumber the property.
However, today when the matter was listed, the petitioner's counsel
informed the court that such an undertaken could not be given as the
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C.R.P(PD)(MD) No.528 of 2021
petitioner desired to mortgage the property to raise the loan to clear out
his dues to third party. Therefore, it is clear that the petitioner is indebted
to other party as well. Therefore, the apprehension of the petitioner is
well founded and I do not find any error in the order passed by the
learned 1st Additional District Munsif, Thoothukudi .
4.In the result, this Civil Revision Petition is dismissed. No costs.
Consequently, connected miscellaneous petition is closed.
30.11.2021
Index:Yes/No
Internet:Yes/No
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Note : In view of the present lock down owing to
COVID-19 pandemic, a web copy of the order may
be utilized for official purposes, but, ensuring that
the copy of the order that is presented is the correct
copy, shall be the responsibility of the
advocate/litigant concerned.
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C.R.P(PD)(MD) No.528 of 2021
P.T.ASHA, J.
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To:-
The 1st Additional District Sessions Judge,
Thoothukudi.
C.R.P(PD) (MD)No.528 of 2021
and
C.M.P(MD) No.2808 of 2021
30.11.2021
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https://www.mhc.tn.gov.in/judis
