Stalin Golden Amalraj vs Ramadas
2022 Latest Caselaw 18224 Mad

                                                                           C.M.A(MD)No.636 of 2022

                        BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

                                                   Dated : 16.12.2022

                                                       CORAM

                                    THE HONOURABLE MRS.JUSTICE N.MALA

                                             C.M.A(MD)No.636 of 2022
                                                      and
                                             C.M.P(MD)No.5461 of 2022

                Stalin Golden Amalraj                                   ... Appellant/ Petitioner/
                                                                            Defendant.

                                                          Vs

                Ramadas                                                 ...Respondent/Petitioner/
                                                                           Plaintiff
                PRAYER :-

                           This Civil Miscellaneous Appeal is filed under order 43 and Rule (1)

                (q) of Civil Procedure Code to set aside the order, dated 29.04.2022 in I.A.No.

                1 of 2020 in O.S.No.152 of 2020 on the file of the Additional District Court

                (FTC), Tenkasi.

                                  For Appellant     : Mr.S.Vishnuvardhan
                                  For Respondent    : Mr.K.Sankar


                                                     JUDGMENT

This Civil Miscellaneous Appeal is filed against order, dated

29.04.2022 passed in I.A.No.1 of 2020 in O.S.No.152 of 2020 on the file of

the Additional District Court (FTC), Tenkasi. https://www.mhc.tn.gov.in/judis

C.M.A(MD)No.636 of 2022

2. The case of the plaintiff/respondent was that the appellant/defendant

had obtained a hand loan of Rs.15,00,000/- from him and executed a

promissory note for the hand loan on 01.11.2019. The respondent was said to

have issued a cheque for the loan of Rs.15,00,000/- on 16.02.2020. When the

same was deposited on 29.02.2020, it was returned by the Bank with a memo

stating that “payment was stopped by drawer”. The respondent/plaintiff

therefore filed I.A.No.1 of 2020 in O.S.No.152 of 2020 for attachement of

property before judgment under Order 38 and Rules 5 and 6 of Civil

Procedure Code.

3. When I.A.No.1 of 2020 was taken up by the lower Court, a cryptic

order was passed as follows:

“Heard on the both side of the petitioner. Records perused. From the EC it is established that the respondent is the owner of the Scheduled Property. It is stated by the Petitioners that the respondent is taking steps to dispose the Scheduled Property. Therefore to recover the suit amount it is necessary to Attach the Property. Attach by 13.06.2022.”

4. The learned counsel for the appellant/defendant submits that the

order is a non-speaking order and against the provisions of Order 38 Rules 5

and 6 of Civil Procedure Code. Therefore, the learned counsel for the

appellant prays to allow the appeal.

https://www.mhc.tn.gov.in/judis

C.M.A(MD)No.636 of 2022

5. The learned counsel for the respondent fairly submits that the matter

may be remitted back to the lower Court for fresh consideration.

6. I find force in the submission of the learned counsel for the appellant

that procedure contemplated under Order 38 Rules 5 and 6 of CPC has not

been followed and therefore, the order in I.A.No.1 of 2020, dated 29.04.2022

is set aside and the matter is remitted back to the Additional District Court

(FTC), Tenkasi for fresh consideration in accordance with law. The Additional

District Judge (FTC), Tenkasi is directed to dispose of the matter on merits

and in accordance with law within a period of six weeks from the date of

receipt of copy of this order. This Civil Miscellaneous Appeal is allowed. No

costs. Consequently, connected miscellaneous petition is closed.

16.12.2022 Index : Yes / No Internet : Yes / No sn

To

1.The Additional District Court (FTC), Tenkasi

2.The Record Keeper, Vernacular Records, Madurai Bench of Madras High Court, Madurai.

https://www.mhc.tn.gov.in/judis

C.M.A(MD)No.636 of 2022

N.MALA, J sn

C.M.A(MD)No.636 of 2022

16.12.2022

https://www.mhc.tn.gov.in/judis