Madras High Court
S.Baisil vs Shoba Helen Nadarajan on 27 February, 2025
C.M.A.(MD)No.1044 of 2024
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.02.2025
CORAM:
THE HONOURABLE MRS.JUSTICE R.KALAIMATHI
C.M.A.(MD)No.1044 of 2024
and
CMP(MD)No.10928 of 2024
S.Baisil ... Appellant
vs.
Shoba Helen Nadarajan ... Respondent
PRAYER: Civil Miscellaneous Appeal is filed under Section 104 and Order
43, Rule of Civil Procedure Code, to set aside the the Fair and Decreetal order
dated 03.06.2024, made by the Additional District and Sessions Judge,
Padmanabhapuram, in I.A.No.2 of 2023 in O.S.No.85 of 2023 on his file,
allowing the said I.A.
For appellant : Mr.K.N.Thambi
For Respondent : Mr.M.Prabhu
1/6
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2025 03:37:43 pm )
C.M.A.(MD)No.1044 of 2024
JUDGMENT
This Civil Miscellaneous Appeal has been preferred against the Fair
and Decreetal Order dated 03.06.2024 passed in I.A.No.2 of 2023 in O.S.No.
85 of 2023 by the Additional District and Sessions Judge,
Padmanabhapuram.
2. Heard the learned Counsel on either side and perused the records.
3. The appellant/plaintiff herein has filed a suit in O.S.No.85 of 2023
against the respondent/defendant herein for recovery of money of
Rs.23,92,252/-.
4. While so, the appellant/plaintiff moved an application in the said suit
under Order 38 Rule 5 and under Section 151 of C.P.C., to order the
respondent/defendant to furnish Rs.25,00,000/- as security and on his failure
to do so, the schedule mentioned property may be conditionally attached till
the disposal of the suit.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2025 03:37:43 pm )
5. During the enquiry in the interim application, neither the
respondent/defendant appeared nor his counsel represented him and hence,
the respondent/defendant was set ex-parte.
6. Upon consideration, the trial Court dismissed the petition.
7. The prime object of passing of order of attachment before the
judgment is to enable the appellant/plaintiff to realise the amount of the
decree and to prevent a decree from becoming infructuous. It is relevant to
note that the order that is contemplated is not an unconditional one, but one
calling upon the defendant to furnish security, who is to show cause, why
security should not be furnished. If the defendant offers to give security, then
the Court should go into the question of its sufficiency before issuing a final
order of attachment. Of course it should not be utilized as a lever for the
plaintiff to coerce the defendants to come to terms.
8. The appellant/plaintiff has stated in his affidavit that the
respondent/defendant is negotiating with strangers for selling the scheduled
mentioned property and if the respondent alienates the same, he would be put
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2025 03:37:43 pm )
to great loss and hardships. These details are absolutely suffice to invoke
Order 38 Rule 5. During the enquiry, under Order 38 Rule 5, the first step
would be to direct the respondent/defendant to furnish security for the amount
mentioned in the petition/plaint as the case may be. Thereafter, it is for the
Court either to accept or to reject the same. In this case, the
respondent/defendant was not asked to furnish security. Therefore, the order
of the trial Court has to be necessarily interfered with and the impugned order
stands set aside.
9. The trial Court after issuing notice afresh to the
respondent/defendant shall direct the respondent/defendant to furnish security
and to decide about its sufficiency and thereafter, shall pass orders in
accordance with Order 38 Rule 5.
10. Based on the aforesaid observations, this Civil Miscellaneous
Appeal stands allowed. In the result, the impugned order dated 03.06.2024
passed in I.A.No.2 of 2023 in O.S.No.85 of 2023 by the learned Additional
District and Sessions Judge, Padmanabhapuram, is set aside and the trial
Court is directed to dispose of the suit on merits preferably, within a period of
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2025 03:37:43 pm )
six (6) months from the date of receipt of a copy of this judgment. No costs.
Consequently, connected miscellaneous petition is closed.
27.02.2025
NCC : Yes/No
Index : Yes / No
Internet : Yes / No
jbr
To
1. The Additional District and Sessions Court, Padmanabhapuram.
2. The Section Officer,
V.R. Section,
Madurai Bench of Madras High Court,
Madurai.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2025 03:37:43 pm )
R.KALAIMATHI,J
jbr
Pre-delivery order made in
27.02.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 24/03/2025 03:37:43 pm )
