Madras High Court
S.Uma vs M.Logeswari on 28 March, 2023
CRP.No.898 of 2023
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 28.03.2023
CORAM
THE HONOURABLE MRS. JUSTICE T.V.THAMILSELVI
C.R.P.No.898 of 2023
and
CMP.No.6737 of 2023
1. S.Uma
2. S.Narasinga Rao
3. S.Sharini
4. S.Sharanth
5. K.Sulochanana ... Petitioners
Versus
M.Logeswari ... Respondent
PRAYER : Civil Revision Petition filed under Article 227 of Constitution
of India, prayed to set aside the fair and decreetal order 28.11.2022 in IA
No.2 of 2021 in OS.No.397 of 2021 on the file of the Principal District
Judge, Kanchipuram at Chengalpattu and to allow the above Civil Revision
Petition with cost.
For Petitioners : Mr.J.Ravi Kumar
For Respondent : Mr.K.Mani
ORDER
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CRP.No.898 of 2023
Challenging the impugned order passed in IA.No.2 of 2021 in
OS.No.397 of 2021 dated 28.11.2022 on the file of the learned Principal
District Judge, Kanchipuram at Chengalpattu, the defendants/petitioners
preferred this revision.
2. The learned counsel for the revision petitioners would submit that
before the trial Court, the plaintiff/respondent herein filed an application
under Order 38 Rule 5 of CPC praying to attach the schedule mentioned
property before the Judgment for the suit claim and in that application, the
defendants/petitioners filed objections by stating that they are not liable to
pay the suit claim and the documents relied on by the plaintiff/respondent
are fabricated by forging the signatures of the deceased Sudeendar and also
denied the Memorandum of Understanding which was relied on by the
plaintiff/respondent. Further, they also raised objections stating that the
application as such is not maintainable for the reason that they want to send
the documents relied on by the plaintiff/respondent to the Forensic Lab and
until they obtain the report, the liability of the plaintiff/respondent cannot be
fixed. So, they raised objections.
3. On hearing both sides, the trial Judge passed order straight away to
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CRP.No.898 of 2023
attach the property belongs to the defendants/petitioners. Challenging the
said order, the defendants/petitioners preferred this revision. The learned
counsel for the defendants/petitioners would submit that after filing of this
IA.No.2 of 2021, the plaintiff/respondent also filed another IA.No.6 of 2022
by invoking the Order 38 Rule 5 of CPC praying for attachment and the
same was also pending till date. For the same relief, the plaintiff/respondent
filed application, as such is not maintainable, but inspite of the objection
raised by the defendants, the trial Court passed an order of attachment
which is totally unfair and liable to be set aside.
4. By way of reply, the learned counsel for the plaintiff/respondent
would submit that since the defendants/petitioners attempted to ailenate the
property, the respondent filed application in IA.No.2 of 2021 and the same
was rightly considered by the trial Judge by ordering attachment of the
property before the Judgment, but, on perusal of records reveals that
IA.No.2 of 2022 was filed by the petitioners praying to seek attachment of
the property before the suit claim. Order 38 Rule 5 of CPC speaks as
follows:
“ Order 38, Rule 5 of CPC, '' Attachment before Judgment'' (I) where,
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CRP.No.898 of 2023
at any stage of a suit, the Court is satisfied, by Affidavit or otherwise that the
Defendant with intent to obstruct or delay the execution of any Decree that
may be passed against him, -(a) is about to dispose of the whole or any of his
property, 0r(b) is about to remove the whole or any part of his property from
the local limits of the jurisdiction of the Court, the Court may direct the
Defendant, within a time to be fixed by its, either to furnish security. In such,
sum as may be specified in the order, to produce and place at the disposal of
the Court, when required, the said property or the value of the same or such
portion thereof as may be sufficient to satisfy the Decree or to appear and
show cause why he should not furnish security.(2) The Plaintiff shall, unless
the Court otherwise directs, specify the property required to be attached and
the estimated value thereof. (3) The court may also in the order direct the
conditional attachment of the whole or any portion of the property so specified
(4) if an Order of Attachment is made without complying with the provisions of
Sub-rules (I) of this rule, such attachment shall be void”
5. The plaintiff/respondent ought to have mentioned the prayer for
furnishing the security for the suit claim, but no such prayer was found in
IA.No.2 of 2021, without considering the main proposition of law, the trial
Judge erroneously passed anorder of attachment straightaway without
directing the defendants to furnish security is totally erroneous one and
liable to be set aside.
6. Furthermore, IA.No.6 of 2022 filed by the plaintiff/respondent for
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CRP.No.898 of 2023
the same relief under Order 38 Rule 5 of CPC in which, the plaintiff has
rightly sought prayer to furnish security for the suit claim as required under
the said provision of law, but, the said IA.6 of 2022 is still pending. Hence,
both the parties are directed to work out their remedies in IA.No.6 of 2022
provided the trial Judge also directed to try the applications filed by the
defendants to send the document to expert opinion in IA.No.9 of 2022.
Therefore, the findings given by the trial judge in IA.No.2 of 2021 are set
aside. No costs. However, both the parties are at liberty to work out their
remedies in IA.No.6 of 2022. The trial Judge is also directed to dispose the
same as expediously as possible and is directed to try IA,No.6 of 2022
along with IA.No.9 of 2022. Both the parties are directed to cooperate for
the trial proceedings and speedy disposal. Consequently, the connected civil
miscellaneous petition is closed.
28.03.2023
Vv
To
The Principal District Judge,
Kanchipuram at Chengalpattu
T.V.THAMILSELVI, J.
https://www.mhc.tn.gov.in/judis
CRP.No.898 of 2023
Vv
C.R.P.No.898 of 2023
and
CMP.No.6737 of 2023
28.03.2023
https://www.mhc.tn.gov.in/judis
