R.Muthusami vs A.K.Perumalsami Gounder
2022 Latest Caselaw 7095 Mad

Citation : 2022 Latest Caselaw 7095 Mad
Judgement Date : 5 April, 2022

Madras High Court

R.Muthusami vs A.K.Perumalsami Gounder on 5 April, 2022

                                                                            C.R.P.(PD) No.2370 of 2019

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                     DATED: 05.04.2022

                                                         CORAM

                                  THE HONOURABLE MR.JUSTICE N.SESHASAYEE

                                             C.R.P. (PD) No.2370 of 2019 and
                                                C.M.P. No.15436 of 2019

                   R.Muthusami                                                  ... Petitioner
                                                            vs

                   A.K.Perumalsami Gounder                                       ... Respondent

                   Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
                   India to set aside the judgment and decree passed in C.M.A. No.7 of 2019
                   dated 03.07.2019 on the file of III Addl. District and Sessions Judge, Erode at
                   Gobichettipalayam against the fair and decretal order passed in I.A. No.2 of
                   2019 in O.S. No.1 of 2019 dated 02.04.2019 on the file of Sub Court at
                   Sathyamangalam.

                                                           ****
                                    For Petitioner          : Mr.R.Jayaprakash

                                    For Respondent          :     Mr.D.R.Arunkumar

                                                           ****




                                                         ORDER

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The defendant in O.S. No.1 of 2019 is before this court with this revision, in

which, he challenges an order of attachment before judgment passed by the

trial court (Sub Court, Sathyamangalam) in I.A. No.2 of 2019, which came to

be confirmed by the first appellate court ( III Addl. District and Sessions

Judge, Erode at Gobichettipalayam ) in C.M.A. No.7 of 2019.

2. The learned counsel for the revision petitioner/defendant in the suit argued

that, for the claim of about Rs.6.00 Lakhs, a property worth around one crore

has been attached. He submitted that, besides the conditions that are essential

for attaching a property before judgment as stipulated in Order XXXVIII

Rule 5 CPC, if at all court can attach a property before judgment, it can attach

only so much property as may be necessary to satisfy such decretal amount

that may be passed. He also submitted that, this court, vide its order in

M/s.Viprah Technologies Limited & Others v. T.Ganesan & Others reported

in 2022-1-L.W.729 has also evolved an alternative strategy in lieu of an

attachment before judgment.

3. Heard the learned counsel for the respondent.

4. Prima facie this court considers the submissions of the counsel for the

https://www.mhc.tn.gov.in/judis __________ Page No.2/5 C.R.P.(PD) No.2370 of 2019

petitioner without going into the merits of the case. Before passing an order

of attachment of an immovable property of the defendant, the court may

scrupulously follow the circumstances, whether it can exercise its authority to

attach or not. It would be beneficial for the trial court to follow the ratio in

Raman Tech. and Process Engg. Co. and Ors. vs. Solanki Traders [ (2008)

2 SCC 302] and once it chooses to exercise its power to attach the property

before attachment, then it should be conscious of the fact that its order has the

effect of affecting the right to property of the defendant and therefore, it

needs to be careful in attaching the extent of property that may be required to

satisfy a decree that may be passed in the suit. It is to alleviate any such

difficulties that may visit the defendant, this court has suggested an alternate

option vide its order reported in 2022-1-L.W. 729.

5. This court, therefore, considers it appropriate to direct the trial court to re-

visit the issue in the light of what is stated here-in-above. The order of the

court below is now set aside. The matter is now remanded back to the trial

court for a de novo consideration to decide the matter on the basis of what are

stated here-in-above. Till the trial court takes up a decision on I.A. No.2 of

2019 afresh, there shall be an order of injunction restraining the defendant

from alienating any part of the property, which is now under attachment. https://www.mhc.tn.gov.in/judis __________ Page No.3/5 C.R.P.(PD) No.2370 of 2019

6. In the meantime, this court directs the trial court to expedite the process of

trial and it is underscored that the trial of the case need not be halted by the

pendency of I.A. No.2 of 2019, since the interlocutory application is only a

supplementary proceedings which may not have an immediate bearing on the

conduct of the trial of the suit.

7. Accordingly, the civil revision petition is allowed. The judgment and

decree passed in C.M.A. No.7 of 2019 dated 03.07.2019 on the file of III

Addl. District and Sessions Judge, Erode at Gobichettipalayam, against the

fair and decretal order passed in I.A. No.2 of 2019 in O.S. No.1 of 2019 dated

02.04.2019 on the file of Sub Court at Sathyamangalam, are set aside. The

matter is now remanded back to the trial court for a de novo consideration.

There shall be no order as to costs. Consequently, the connected civil