Madras High Court
C.Malakondaiah vs V.Penchallama on 3 November, 2025
2025:MHC:2582
C.R.P.No.5259 of 2025
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED : 03.11.2025
CORAM
THE HONOURABLE MR.JUSTICE S.SOUNTHAR
C.R.P.No.5259 of 2025
and
C.M.P.No.26462 of 2025
C.Malakondaiah ... Petitioner
Vs.
1. V.Penchallama
2. Bujjama also known as Kalpana
3. V.Ramesh also known as Nagure
4. Vijiya ... Respondents
PRAYER: Civil Revision Petition filed Article 227 of Constitution of
India, to allow the CRP and consequently allow I.A.No.2 of 2025 in
O.S.No.5441 of 2025 on the file of the XII City Civil Court, Chennai, and
be pleased to order attachment of the immovable property.
For Petitioner : Mr.P.L.Narayanan
Senior Counsel for
Mr.Hariharan E.
ORDER
This Civil Revision Petition is filed challenging the order passed
by the Court below, dated 19.09.2025 issuing Show Cause notice to the
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/11/2025 01:27:48 pm )
respondents herein, calling upon them to furnish security in the
application filed by the petitioner with a prayer for attachment before
judgment.
2. The learned Senior Counsel appearing for the petitioner relying
upon the judgment of this Court in N.Pappammal Vs. L.Chidambaram
reported in 1983 SCC Online Madras 151 submits that at the time of
ordering notice, if the Court is satisfied, it can order conditional
attachment, so as to protect the interest of the petitioner.
3. In the case on hand, on perusal of the averments contained in
the affidavit filed in support of the petition for attachment before
judgment, by the impugned order, the trial Court has decided to issue
notice to the respondents calling upon them to furnish security. The
discretion vested with the trial Court has to be exercised one way or the
other. Order 38 Rule 5(3) uses the word ''may''. Therefore, at the time of
ordering notice to respondent to furnish security, the Court may pass
conditional attachment under Rule 5(3). The employment of word ''may''
instead of ''shall'' indicates discretion vested with the Court ordering
notice. In Pappammal cases cited supra, this Court also said while
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/11/2025 01:27:48 pm )
ordering notice to furnish security, the Court may also pass conditional
order of attachment. The case law relied on by learned counsel does not
lay down any law as if in all cases Court orders notice to furnish security
simultaneously shall order conditional attachment. Hence, certain degree
of discretion is available to the Court ordering notice. It depend on
seriousness of averment contained in affidavit of party seeking
attachment and the source of information indicated in averment. The
exercise of this judicial discretion by Court of first instances, cannot be a
subject matter of revision. The substantial right of the parties are not
decided in this case and therefore, issuing notice to the respondents
calling upon them to furnish security will not fall under the category of
''case decided'' to enable this Court to exercise its revisional jurisdiction.
Therefore, I do not find any illegality in the order passed by the trial
Court. Accordingly, this Civil Revision Petition stands dismissed. The
trial Court is directed to dispose of ABJ petition as expeditiously as
possible in the light of provisions contained in Order 38 of CPC more
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/11/2025 01:27:48 pm )
particularly Order 38 Rule 5(3) of CPC. There shall be no order as to
costs. Consequently, connected miscellaneous petition is closed.
03.11.2025
Index:Yes
Speaking order
Neutral Citation:Yes
ms
To
The XII Assistant Judge,
City Civil Court, Chennai.
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/11/2025 01:27:48 pm )
S.SOUNTHAR, J.
ms
and
03.11.2025
https://www.mhc.tn.gov.in/judis ( Uploaded on: 13/11/2025 01:27:48 pm )
