M.Karuppasamy vs R.Sivagiripalanisamy
2023 Latest Caselaw 12358 Mad

                                                                            C.M.A.No.1835 of 2023

                                   IN THE HIGH COURT OF JUDICATURE AT MADRAS

                                                  DATED: 12.09.2023

                                                       CORAM:

                                  THE HONOURABLE MR.JUSTICE SUNDER MOHAN

                                              C.M.A.No.1835 of 2023 and
                                                C.M.P.No.17826 of 2023

                   M.Karuppasamy                                                     ... Appellant

                                                            Vs.

                   R.Sivagiripalanisamy                                           ... Respondent

                   PRAYER: Civil Miscellaneous Appeal filed under Order XLIII Rule 1(q)

                   R/W Section 104 of C.P.C., 1908, against the Fair and Decretal order dated

                   21.07.2022 passed in I.A.No.1 of 2020 in O.S.No.419 of 2020 on the file of

                   the I Additional District Court, Tiruppur.

                                     For Appellant         : Ms.Revathi Manivannan
                                     For Respondent        : Mr.K.V.Muthuvisakan

                                                    JUDGMENT

The above appeal has been filed against the order passed in I.A.No.1

of 2020 in O.S.No.419 of 2020 by which the learned I Additional District

Court, Tiruppur had ordered attachment of property of the appellant at the

instance of the respondent herein.

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

C.M.A.No.1835 of 2023

2.The respondent filed the said I.A.No.1 of 2020 in O.S.No.419 of

2020 stating that he had lent a sum of Rs.58,20,000/- for which the

appellant had executed a pronote; that the appellant is attempting to sell his

property and therefore, there was a necessity to attach the same.

3.The appellant herein resisted the said petition stating that he had

not borrowed any sum or executed the pronote, that the property sought to

be attached was already under mortgage with the Indian Overseas Bank and

therefore no attachment order can be passed as prayed for by the respondent

herein.

4.The learned Judge after considering the pleadings on either side has

observed that the property is liable to be attached and allowed the petition

filed by the respondent.

5.The learned counsel for the appellant submitted that an order of

attachment cannot be passed on mere asking; that the respondent had not

made any prima facie case warranting an order of attachment; and that the

learned Judge had not given any reasons for passing an order of attachment

and therefore, the order is liable to be set aside.

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

C.M.A.No.1835 of 2023

6.Learned counsel for the respondent per contra submitted that prima

facie case has been made out and the respondent has also filed the pronote

executed by the appellant and the order passed by the learned Judge is

justified and no interference is called for in the said order.

7.It is seen from the order passed by the learned Judge that the

property which is sought to be attached is under mortgage with the Indian

Overseas Bank and the said mortgage was created on 05.01.2021. It is also

seen that there is no discussion in the order passed by the learned Judge as

to why an order of attachment has to be passed. It is well settled that an

order of attachment cannot be passed on mere asking.

8.The learned counsel for the appellant offered to file an affidavit

stating that the appellant would not sell the property that is sought to be

attached in the event of the property being redeemed from mortgage.

The learned counsel has filed an affidavit undertaking not to alienate the

property mentioned in the schedule to the petition for attachment filed by

the respondent.

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

C.M.A.No.1835 of 2023

9.In the light of the above, this Court records the affidavit filed on

behalf of the appellant. As per the affidavit, the appellant is directed not to

alienate the property pending disposal of the suit. It is also submitted by

the learned counsels appearing on either side that the pleadings are

complete in the suit. Hence, the Trial Court is directed to expedite the trial,

and conclude the trial within a period of six months from the date of receipt

of a copy of this order.

10.As stated earlier since the impugned order has been passed

without assigning any valid reasons, it is liable to be set aside and hence set

aside.

11.With the above observations, the appeal is allowed. No costs.

Consequently, the connected miscellaneous petition is closed.

12.09.2023

Index:Yes/No Speaking Order :Yes/No Neutral Citation:Yes/No gvn/pam

Note:Issue order copy on or before 14.09.2023 https://www.mhc.tn.gov.in/judis

C.M.A.No.1835 of 2023

To

The I Additional District Court, Tiruppur.

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

C.M.A.No.1835 of 2023

SUNDER MOHAN, J.

gvn

C.M.A.No.1835 of 2023 and C.M.P.No.17826 of 2023

12.09.2023

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