S.Alagesh Surya vs Manimekalai
2022 Latest Caselaw 746 Mad

                                                                                 C.R.P(PD)No.24 of 2022

                                  IN THE HIGH COURT OF JUDICATURE AT MADRAS
                                                   DATED: 12.01.2022
                                                        CORAM:
                                  THE HONOURABLE MR.JUSTICE R.SUBRAMANIAN
                                                C.R.P(PD)No.24 of 2022
                                                         and
                                                 CMP.No.179 of 2022

                     S.Alagesh Surya                                                     ..Petitioner

                                                            Vs.

                     Manimekalai                                                      ..Respondent


                     Prayer: Civil Revision Petition filed under Article 227 of the Constitution of
                     India, against the fair and final order dated 18.11.2021 passed by the
                     learned Additional District Judge, Namakkal in IA.No.2 of 2020 in
                     OS.No.158 of 2020.
                                           For Petitioner         : Mr.L.Mouli



                                                       ORDER

Challenge in this revision is to the order of dismissal of an

application for attachment before judgment. Attachment was sought for as

security for the suit claim, which is about Rs.1,85,95,447/-.

https://www.mhc.tn.gov.in/judis C.R.P(PD)No.24 of 2022

2.The said claim was resisted by the respondent contending that

all the properties owned by the respondent, of which attachment is sought

for, are all subject to mortgage with bank for the purpose of borrowing of a

firm, of which, the respondent and the petitioner's wife are partners. The

learned Trial Judge found that the claim of the defendant/respondent that

there is a mortgage is true and correct. Therefore, the learned Additional

District Judge dismissed the application for attachment, finding that there is

no need for attachment, since these properties are already subject to

mortgage and there cannot be a sale.

3.Mr.L.Mouli, learned counsel appearing for the petitioner would

vehemently contend that the Court could have granted a second charge. I

am unable to see any force in the submissions of the learned counsel, in as

much as, an order of attachment is made only to prevent alienation and

securing interest of the creditor. In the case on hand, as rightly pointed out

by the learned District Judge, there is no possibility of the properties being

sold, since they are already subject to mortgage in favour of a scheduled

Bank. The fact that the petitioner's wife is a partner with the respondent in

https://www.mhc.tn.gov.in/judis C.R.P(PD)No.24 of 2022

the other business also butresses the conclusions of the learned District

Judge as the debt to the Bank cannot be discharged without the knowledge

of the partners firm. Leaving it open to the petitioner to seek attachment in

the event, the mortgage is satisfied and the properties are released by the

Bank this civil revison petition is dismissed. No costs. Consequently,

connected miscellaneous petition is closed.

12.01.2022 kkn

Index:No Internet:Yes Speaking

To-

The Additional District Court, Namakkal.

https://www.mhc.tn.gov.in/judis C.R.P(PD)No.24 of 2022

R.SUBRAMANIAN, J.

KKN

C.R.P(PD)No.24 of 2022 and CMP.No.179 of 2022

12.01.2022

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