Madras High Court
K.Shobha vs Kalaiselvi on 20 September, 2023
C.R.P.(MD)No.1747 of 2019
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 20.09.2023
CORAM:
THE HONOURABLE MR.JUSTICE C.KUMARAPPAN
C.R.P.(MD)No.1747 of 2019
and
C.M.P.(MD)No.8956 of 2019
K.Shobha ... Petitioner/
Petitioner/Plaintiff
Vs.
Kalaiselvi ... Respondent/
Respondent/
Defendant
PRAYER: Civil Revision Petition filed under Article 227 of the
Constitution of India, to set aside the order dated 04.07.2019 passed by
the I Additional Sub Court, Trichy in I.A.No.309 of 2017 in O.S.No.465
of 2017.
For Petitioner : Mr.T.Lenin Kumar
For Respondent : Mr.R.Suresh Kumar
ORDER
The instant Civil Revision Petition has been filed by the petitioner
under Article 227 of the Constitution of India, against the order, dated
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C.R.P.(MD)No.1747 of 2019
04.07.2019, made in I.A.No.309 of 2017, in O.S.No.465 of 2017, on the
file of the I Additional Sub Court, Tiruchirappalli.
2. The petitioner herein is the plaintiff and the respondent herein is
the defendant before the Court below.
3. For the sake of convenience, the parties will be referred to as per
the litigative status before the trial Court.
4. The learned counsel appearing for the plaintiff would submit
that they have filed an application to recover a sum of Rs.3 lakhs based
upon a promissory note, dated 06.06.2015.
5. It is also the submission of the learned counsel appearing for the
plaintiff that they moved an application under Order 38 Rule 5 of the
Code of Civil Procedure (hereinafter referred as CPC) so as to direct the
defendant to furnish security, failing which, to pass an order of
attachment of property before judgment. However, the said application
was dismissed by the Court below on the ground that, no proof has been
submitted to substantiate the ownership of the defendant over the
schedule mentioned property.
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C.R.P.(MD)No.1747 of 2019
6. Aggrieved with the said dismissal order, the plaintiff has
approached this Court by way of this Civil Revision Petition.
7. The learned counsel appearing for the plaintiff would submit
that though they have submitted the encumbrance certificate, at that point
of time, they were not in a position to submit the title deeds of the
petition mentioned property. Therefore, the Court below has found the
same as a reason to dismiss the application. Aggrieved with the order of
dismissal, this revision petition has been filed.
8. The learned counsel appearing for the plaintiff would also
submit that, now that they have submitted the settlement deed executed
by the defendant in favour of his daughter, which by itself shows the
ownership of the defendant and his intention to defeat the right of the
plaintiff to overcome the attachment before judgment. Hence, he prayed
to allow this petition.
9. Per contra, the learned counsel appearing for the defendant
would submit that, against the dismissal of application under Order 38
Rule 5 for furnishing security, no Civil Revision Petition is maintainable
and the only available remedy is to prefer a Civil Miscellaneous Appeal.
Therefore, on the ground of maintainability, the learned counsel
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C.R.P.(MD)No.1747 of 2019
appearing for the defendant would submit that this Civil Revision
Petition is liable to be dismissed.
10. It is also the further submission of the learned counsel
appearing for the defendant that the petition mentioned property has
already been gifted by the defendant to his daughter. Therefore, as of
now, the petition mentioned property is not at all belonged to the
defendant. Hence, he prayed to dismiss this petition.
11. I have given my anxious consideration to either side
submissions.
12. Before this Court embark into the submissions made on either
side, it has to be decided whether the Civil Revision Petition is
maintainable against the order of dismissal of an application filed under
Order 38 Rule 5 of CPC. It is pertinent to mention here that, though
under Rule 5 of Order 38 application, prayed to furnish security, on
failure prayed for the relief of attachment, and that, the attachment would
falls under Order 38 Rule 6 of CPC. In view of the said position, the
learned counsel appearing for the defendant would urge before this Court
that under Order 42 Rule 9 the only remedy available for the plaintiff is
to prefer a Civil Miscellaneous Appeal.
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C.R.P.(MD)No.1747 of 2019
13. However, the learned counsel appearing for the plaintiff has
relied upon the judgment of the Hon'ble Division Bench of this Court
reported in CDJ 2000 MHC 242 (R.S.Pillai Vs. Smt.M.L.Peratchi Alias
Solvi and others), wherein, this Court has held that, when an application
is filed under Order 38 Rule 5, and that when the said application has
been dismissed, the Court found that the parties never reached the stage
contemplated by Rule 6 of Order 38, in such an event, the Civil Revision
Petition is maintainable. Therefore, this Court holds that though, there is
prayer for the relief of attachment is sought for, in the absence of offering
security, since the petition has been dismissed at the stage of offering
security itself, as held in the above Division Bench Judgment, this Court
is of the indubitable view that even in this case, the parties never reached
the stage contemplated by Rule 6 of Order 38. Therefore, this Court
holds that the instant Civil Revision Petition is maintainable.
14. Now, coming to the merits of the matter, while considering the
observation made by the Court below, the Court below has rejected the
prayer on the ground that the plaintiff has not proved the ownership of
the schedule mentioned property. Now that, the plaintiff has come
forward by production of the settlement deed in respect of the schedule
mentioned property, dated 31.01.2019. Therefore, this Court is of the
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C.R.P.(MD)No.1747 of 2019
view that in view of the submission of the settlement deed, and in respect
of the proof that the petition mentioned property originally belonged to
the defendant, this Court deems it appropriate to set aside the order
passed by the Court below and remit the matter back to the trial Court,
for fresh consideration.
15. In the result, this Civil Revision Petition is allowed and
thereby, the order passed in I.A.No.309 of 2017 in O.S.No.465 of 2017,
dated 04.07.2019 is set aside, and the matter is remitted back to the Court
below. The Court below is directed to dispose of the application in
I.A.No.309 of 2017 according to law within a period of three months
from the date of receipt of copy of this order. It is made clear that the
Court below is directed to dispose of the application without being
influenced by any of the observation made in this order, as it has been
done only for the disposal of this petition. Consequently, connected
Miscellaneous Petition is closed. There shall be no order as to costs.
20.09.2023
NCC:Yes/No
Index:Yes/No
Internet:Yes/No
csm
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1747 of 2019
To
1. The I Additional Sub Court,
Trichy.
https://www.mhc.tn.gov.in/judis
C.R.P.(MD)No.1747 of 2019
C.KUMARAPPAN, J.
csm
ORDER MADE IN
C.R.P.(MD)No.1747 of 2019
and
C.M.P.(MD)No.8956 of 2019
Dated : 20.09.2023
https://www.mhc.tn.gov.in/judis
