Madras High Court
K.R.Chakkaraavarthi vs R.Asaithambi on 26 April, 2023
C.R.P(MD)No.1117 of 2023
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 26.04.2023
CORAM
THE HON'BLE MR.JUSTICE C.SARAVANAN
C.R.P(MD)No.1117 of 2023
and
C.M.P(MD)No.5369 of 2023
K.R.Chakkaraavarthi ... Petitioner/Petitioner/
Plaintiff
Vs.
R.Asaithambi ... Respondent/Respondent/
Defendant
PRAYER: Civil Revision Petition is filed under Article 227 of
Constitution of India, to set aside the fair and decreetal order made in
I.A.No.2 of 2022 in O.S.No.328 of 2022 on the file of the Principal
District Judge, Karur, dated 28.11.2022.
For Petitioners : Mr.S.Gokul Raj
ORDER
The present Civil Revision Petition has been filed against the fair
and decreetal order made in I.A.No.2 of 2022 in O.S.No.328 of 2022 on
the file of the Principal District Judge, Karur, dated 28.11.2022.
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C.R.P(MD)No.1117 of 2023
2. The petitioner is the plaintiff in O.S.No.328 of 2020. The said
suit has been filed by the petitioner against the respondent to recover a
sum of Rs.10,50,000/- consisting of Rs.7,00,000/- towards principal
amount and Rs.3,50,000/- towards interest at the rate of 1.50 paise per
Rs.100/- per month. In the said suit, the petitioner has filed I.A.No.2 of
2022 for attachment of property.
3. In the said proceedings, the respondent has now in Form 6
offered a property as a security. According to the respondent, the value
of the property is Rs.22,00,000/-, whereas, according to the petitioner,
the property that has been offered by the respondent is only Rs.4,00,000/-
and no documents have been furnished to substantiate that the
respondent is the owner of the property. It is further submitted that the
petitioner had earlier issued a legal notice to the respondent on
18.02.2022 which was also received by the respondent on 19.08.2022
and replied on 23.08.2022. It is submitted that after the notice was
issued, the respondent has sold atleast three properties to one J.Aravind
Kumar on 24.08.2022. It is submitted that the Trial Court has committed
a grave error.
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C.R.P(MD)No.1117 of 2023
4. I have considered the arguments advanced by the learned
counsel for the petitioner and the learned counsel for the respondent.
5. The relevant portion of the impugned order reads as under:
9) The counsel for the petitioner has stated that the
property offered by the respondent as a security is only a
house suit and it would not fetch the suit claim. On the other
hand, the property described in the petition schedule property
would fetch the suit claim amount. Therefore, he prays to
reject the security filed by the respondent in the form of Form
6 and ordered to attach the suit property. Therefore, the
petitioner seeks prayer for attachment before judgment in
respect of the property described in the petition. The property
described in the petition is consisting of two items of the
property and the 1" item of the property is 1 Acre 96 cents
agricultural land and the 2 item of the property consists of
0.07 Acre % cents with a Well and 5 HP motor and electricity
connection. The respondent offered security in respect of
house site vacant land in S.E.No.133/1 with an extent of 1350
sq. feet situated at Kattanachampatti village Natham,
Rasipuram Taluk, Namakkal District which is registered as
document No.227/1997 dated 14.02.1997. It appears from the
document No.3 Encumbrance certificate produced on the side
of the respondent that the neighbouring house sites were sold
to various persons and the purchaser of the neighbouring
house sites have obtained loan from the bank, housing
finance etc. to raise construction in the property. The
respondent has purchased the said house site property on
14.02.1997 for a sum of Rs.20,00,000/-. The document No. 1
produced on the side of the respondent would reveals the
same. However, the encumbrance certificate document No.3
would reveals that in and around the above said house sites
constructions are being made and it becomes more worth
than the agricultural lands. Further, now-a-days the value of
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C.R.P(MD)No.1117 of 2023
the house sites are increasing in many times. Therefore, this
Court is of firm opinion that the property offered by the
respondent as a security to the suit claim is sufficient to
satisfy the decree that may be passed in future. Further, the
counsel for the petitioner objected that the respondent has
not even filed the title deed relates to the property offered as
a security. The respondent herein, in compliance of the order
dated 19.09.2022, furnished the security in the form of Form
6. Further, furnishing the security by the respondent in the
form of Form 6 is as good as attaching the properties. Bare
reading of Sub Rule (1) of Rule 5 of Order 38 would clearly
show that this court may order the attachment of the property
only when the respondent fails to furnish the security or show
cause to furnish the security. The case in hand, this
respondent has furnished the security in the form of Form 6.
Further, the judgment-rendered by the Honourable High
Court of Madras in 2014 (3) CTC 792, 2014 (2) CTC 639,
2002 (5) CTC 157 has held as follows:-
2014 (3) CTC 792
Code of Civil Procedure, 1908 (5 of 1908), Order 38,
Rule 5. Bald allegations are not enough to secure Order of
Attachment - In absence of specific allegation, requirement of
Order 38, Rule 5, not made out and Court will not grant
extraordinary remedy of attachment before Judgment-Power
under Order 38, Rule 5 is drastic and extraordinary Such
power should not be exercised mechanically or just for
asking - Power should be used strictly in accordance with
Rules-Plaintiff has not satisfied ingredients of Order 38, Rule
2014 (2) CTC 639
Code of Civil Procedure, 1908 (5 of 1908), Order 38,
Rule 5-Suit for Recovery of Money-Application seeking
Attachment before Judgment-Power under Order 38, Rule 5
is drastic and extraordinary Such power should bot be
exercised mechanically or merely for asking - Order of
Attachment could be granted, only when property is about to
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C.R.P(MD)No.1117 of 2023
be disposed of with an intention to delay or obstruct
execution of Decree that may be passed No case made out by
Applicant - Application dismissed.
2002 (5) CTC 157
Code of Civil Procedure, Order 38, Rule 5- Attachment
before Judgment Defendant offered properties sought to be
attached as Security-Trial Court rejected same on ground
that sale consideration shown in Sale Deed pertaining to
property offered as security was insufficient - Trial Court did
not conduct any independent enquiry regarding value of
property- Trial Court attached properties straightaway
without such enquiry - Trial Court should afford further
opportunity to defendant to furnish security if value of
property offered as security was insufficient - Order of
attachment set aside and trial Court directed to conduct de
novo enquiry.
10) Therefore, in the line of the above said decision
and also for the facts and reason stated above, the security
furnished by the respondent is sufficient to satisfy the decree.
Therefore, the objection raised by the petitioner is not
acceptable. In view of the above said fact and reason, the
security furnished by the respondent is accepted and
recorded. This petition is disposed, accordingly.
11) In the result, security furnished by the respondent
on 12.10.2022 in the form of Form 6 is accepted and
recorded. In view of the same this petition is disposed.
6. In my view, the security that has been offered by the respondent
under Order 38 Rule 5 of C.P.C is sufficient to secure the interest of the
petitioner. The petitioner has not filed any document to substantiate that
the value of the property is lesser.
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C.R.P(MD)No.1117 of 2023
7. Considering the above, I do not any merits in the present civil
revision petition. The property that has been offered as security by the
respondent shall be treated to attached by the Court and shall not be
disposed by the respondent.
8. The Trial Court is directed to send suitable notice to the Sub
Registrar Office stating that the property in question stands attached
pursuant to order dated 28.02.2022 so that there is no fresh alienation or
fresh encumbrance of the property offered as a secuirty. The respondent
is directed to file a written statment, if it has already not been filed, by
30.06.2023.
9.The Trial Court shall thereafter proceed to frame issues and
proceed with the trial and bring a closure to the dispute on merits and in
accordance with law within a period of 12 months from the date of
receipt of copy of this order.
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C.R.P(MD)No.1117 of 2023
10. The present Civil Revision Petition stands dismissed with the
above observations. No costs. Consequently, connected miscellaneous
petition is closed.
26.04.2023
NCC : Yes / No
Index : Yes / No
Internet : Yes / No
sn
To
1.The Principal District Judge, Karur.
2.The Section Officer
Vernacular Section,
Madurai Bench of Madras High Court,
Madurai.
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C.R.P(MD)No.1117 of 2023
C.SARAVANAN,J.
SN
C.R.P(MD)No.1117 of 2023
26.04.2023
https://www.mhc.tn.gov.in/judis
