Sri. G. Srinivasulu vs Smt. Pushpa Devi And Another
2022 Latest Caselaw 1554 Tel

 THE HON'BLE SRI JUSTICE A. VENKATESHWARA REDDY

         CRP Nos.1066, 642, 683 and 1058 of 2021

COMMON ORDER:

1.   All these Civil Revision Petition Nos.1066, 642, 683

and 1058 of 2021 are filed under Article 227 of the

Constitution of India by the respondent/defendant in

I.A.No.259 of 2021 in O.S.No.32 of 2021, in I.A.No.12 of

2021 in O.S.No.41 of 2020, in I.A.No.100 of 2021 in

O.S.No.14 of 2021 and in I.A.No.291 of 2021 in O.S.No.33

of 2021 respectively on the file of the learned XII Additional

District and Sessions Judge, Ranga Reddy at Vikarabad.

2. a) I.A.No.259 of 2021 in O.S.No.32 of 2021 was filed by

the petitioner/plaintiff therein under Order-38 Rule 5 read

with Section 151 of the Civil Procedure Code, 1908 (for

short 'CPC') for attachment before judgment of petition

schedule property i.e., house bearing Nos.3-1-35 & 38

admeasuring 484 square yards with ground + two floors

situated at backside Ploliti Mahraj Temple, under the limits

of Tandur Municipality, Vikarabad District.

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

b) I.A.No.12 of 2021 in O.S.No.41 of 2020 was filed by

the plaintiffs therein under Order-38 Rule-5 read with

Section 151 of CPC for attachment before judgment in

respect of petition schedule property i.e., house bearing

Nos.3-1-35 and 38 consisting of ground + two floors,

backside Ploliti Mahraj Temple, under the limits of Tandur,

Vikarabad District.

c) I.A.No.100 of 2021 in O.S.No.41 of 2020 was filed by

the petitioner/plaintiff therein under Order-38 Rule-5 read

with Section 151 of CPC for attachment before judgment of

petition schedule property i.e., house bearing Nos.3-1-

99/5A admeasuring 300 square yards, out of 600 square

yards with plinth area in cellar, ground and first floor, each

2100 square feet constructed in Survey No.137/P situated

at Tandur Village, Ward No.3, Kodangal Road, within the

limits of Tandur Municipality, Vikarabad District.

d) I.A.No.291 of 2021 in O.S.No.33 of 2021 was filed by

the petitioner/plaintiff therein under Order-38 Rule 5 read

with Section 151 of CPC for attachment before judgment of

house bearing No.3-1-99/5A admeasuring 300 square

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

yards, out of 600 square yards with plinth area of 2100

square feet each in cellar, ground and first floor

constructed in Survey No.137/P, Tandur village, Ward

No.3 within the limits of Tandur Municipality, Vikarabad

District.

3. All the above original suits are filed by the different

plaintiffs against G. Srinivasulu, s/o. G. Subramanyam as

the sole defendant for recovery of money. Along with the

suit, the above IAs are filed seeking attachment before

judgment of petition schedule properties mentioned

therein. In IA No.259 of 2021 in OS No.32 of 2021 and in

IA No.12 of 2021 in OS No.41 of 2020, the property

involved is house bearing Nos.3-1-35 & 38 as described

above. Whereas, in IA No.100 of 2021 in OS No.14 of 2021

and in IA No.291 of 2021 in OS No.33 of 2021 the schedule

of property is house bearing No.3-1-99/5A as indicated

above. Thus, though in all the above IAs, petitioners/

plaintiffs are different persons, the respondent/defendant

is one and the same person and the suit claim is for

recovery of money. Accordingly, since the common question

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

of attachment before judgment is involved against the same

defendant in respect of two different properties, it is

proposed to dispose of all the four civil revision petitions

together, through this common order.

4. I.A.No.259 of 2021 in O.S.No.32 of 2021 was allowed

as per the docket order dated 23.04.2021, I.A.No.12 of

2021 in O.S.No.41 of 2020 was allowed as per the docket

order dated 25.02.2021, I.A.No.100 of 2021 in O.S.No.14 of

2021 was allowed as per the order dated 02.03.2021 and

whereas, IA No.291 of 2021 in OS No.33 of 2021 was

allowed as per the orders dated 28.04.2021. Feeling

aggrieved by the said orders, the defendant has filed these

four civil revision petitions, assailing the orders mentioned

in the above IAs wherein the petition schedule properties

were attached before judgment.

5. Heard learned counsel for the petitioner/defendant

and the respondents/plaintiffs. Perused the material

available on record. The detailed submissions have been

made by the learned counsel on both sides, which are more

or less on pleaded lines. Therefore, it may not be necessary

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

to refer in detail such submissions. However, such

submissions so made have received due consideration of

the Court.

6. For the sake of convenience, the parties are

hereinafter referred to as plaintiffs and defendant as

arrayed in the original suit.

7. In all the above IAs, the plaintiffs have filed the

applications for attachment before judgment of the petition

schedule properties, as indicated above. The trial Court

through the orders impugned dated 23.04.2021,

25.02.2021, 02.03.2021 and 28.04.2021 allowed the said

applications with a slipshod order without assigning any

reasons. Though an opportunity was given to the

defendant to resist applications and the defendant has filed

a detailed counter, the trial Court has not considered the

same. It is merely mentioned in the orders impugned

passed in IA Nos.291 and 259 of 2021 in OS Nos.33 and 32

of 2021 respectively that vakalat and counter affidavit of

respondent No.2, security is not furnished by the

respondents. The learned counsel for the respondent No.2

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

is not responding to video call, hence attachment before

judgment of petition schedule house.

8. Whereas, IA No.12 of 2021 was allowed as per the

docket order dated 25.02.2021 holding that respondent is

not ready for enquiry. Counsel for the petitioners is

present. Heard. In the facts and circumstances of the

petition and the documents filed by the petitioners, the

attachment before judgment is ordered. However, no such

order is found in IA No.100 of 2021 in OS No.14 of 2021,

but a warrant of attachment before judgment under Order-

38 Rule-5 CPC was issued. Even as per the grounds of

revision in CRP No.683 of 2021, the date of any such order

impugned is not mentioned except showing the date as

02.03.2021, on which date the warrant is signed by the

learned Presiding Officer of the XII Additional District &

Sessions Judge, Rang Reddy at Vikarabad.

9. The leaned counsel for the revision petitioner/

defendant would submit that the impugned orders are

passed without application of mind, without assigning any

reasons and such orders are unsustainable. He would

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

submit that the defendant in all the above IAs filed a

detailed counter disclosing that he is not liable to pay any

such amount. Even otherwise, he is permanent resident of

that place. He is not moving out of the jurisdiction of the

Court. At no point of time he tried to flee away to the

United States of America by closing his office. Whereas,

the plaintiffs are money lenders without any money lending

licence and all false allegations are made against the

petitioners and the order passed is not sustainable. The

learned counsel for the defendant relied on the following

decisions:

i) M/s. Raman Tech & Press Engg. Co., M/s. Solanki Traders1

ii) Anumati v. Punjab National Bank2;

iii) Rajender Singh v. Ramdhar Singh3;

iv) Sripathi Panditarajula Venkanna Babu v.

Varalakshmi finance Corporation Rajahmundry4;

v) M/s. R.B.M. Pati Joint Venture, petitioner v.

M/s. Bengal Builder, Opposite party5;

vi) H.R. Halappa and others v. H. Devaraju6.

(2008) 2 SCC 302

(2004) 8 SCC 498

AIR 2001 SC 2220

1996 (4) ALD 453 (DB)

AIR 2004 Calcutta 58

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

10. Per contra, the learned counsel for the plaintiffs

seeks to submit that the defendant is liable to pay the

amount to the plaintiffs in the above original suits.

Accordingly, the plaintiffs in OS No.32 of 2021, OS No.41

of 2020, OS No.14 of 2021 and OS No.33 of 2021 have filed

separate suits along with IAs for attachment before

judgment as indicated above. Though the trial Court failed

to assign reasons for ordering attachment before judgment,

it has arrived at a right conclusion as the defendant is

trying to flee away from out of the jurisdiction of the Court

to frustrate the decree, if any passed in favour of the

plaintiffs. Hence, the trial Court has rightly ordered

attachment before judgment of petition schedule properties

and the order is sustainable and relied on the principles

laid in the following decisions.

i) Bommanasaree Mandir, appellants v. Manisha Sarees, respondent7;

ii) Ajay Agarwal and others v. Nagarjuna Finance Limited8.

AIR 2009 Karnataka 29

AIR 2002 AP 66

2002 (3) ALD 708

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

11. I have given my anxious and thoughtful consideration

to the principles laid in the above decisions relied by the

learned counsel for the defendant and plaintiffs. In the

light of rival contentions made by both the parties, the

question that requires for consideration is whether the trial

court is required to record reasons before ordering issue of

warrant of attachment before judgment under Order-38

Rule-5 CPC.

12. Rule-5 of Order-XXXVIII CPC is relevant for the

purpose of this case, which reads as under:

"Where defendant may be called upon to furnish security for production of property

(1) Where, 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 part of his property, or

(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 it, 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.

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

(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-rule (1) of this rule such attachment shall be void."

13. The power of Court to order attachment before

judgment is attracted only when the plaintiff pleads and

prima facie case is proven, two conditions are precedent.

Thus, the provisions of Rule-5 of Order-XXXVIII of CPC

show two precedents. i) a decree that may be passed from

being rendered infrucutous before passing an order. Under

this provision, Court must be satisfied that not only the

defendant is really trying to dispose of his property or

about to remove it from its jurisdiction and ii) that his

object to obstruct or delay the execution of any decree that

may be passed. Even when such prima facie case is proved

without order of attachment cannot be straightaway issued

without following the procedure contemplated in Rule-5 of

Order-XXXVIII CPC. The said rule requires the Court to

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

direct the defendant to furnish security in such a sum as

may be specified within the time stipulated by the Court.

14. From a reading of Order-XXXVIII, Rule-5 CPC and

the relevant Forms appended to CPC, it becomes clear that

the power to attach before the judgment cannot be

exercised in a routine manner. If the Court is satisfied

prima facie with regard to conditions enumerated in Rule-5

of Order-XXXVIII CPC, such reasons should be found in

the order at least at the stage of ordering the warrant of

attachment in Form-7. That is to say, if the defendant fails

to furnish security or fails to satisfy the Court as to why

security is not necessary, the Court has to pass order

giving reasons keeping in view the conditions mentioned in

Rule-5 of Order-XXXVIII CPC. Thus, furnishing of reasons

is mandatory and non-furnishing the reasons while issuing

the attachment before judgment would indeed render the

order defective. Direction for attachment before judgment

before recording reasons, set aside as to the existence of

conditions laid in Order-XXXVIII, Rule-5 CPC is illegal.

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

15. In similar set of facts, in the case of Mandala

Suryanarayana, @ babji v. Sri Barla Babu Rao, s/o. Appa

Rao9, a Division Bench of this Court while relying on the

judgment of Hon'ble Supreme Court of India in M/s. Raman

Tech & Press Engg. Co., M/s. Solanki Traders10 and earlier

decisions of this Court, set aside the orders passed by the

trial Court and remitted the matter for fresh consideration

in accordance with the principles laid by the Hon'ble

Supreme Court in the above said decision.

16. In Raman Tech's case (1st supra) the Hon'ble

Supreme Court explained the possession under Order-

XXXVIII Rule-5 CPC as below:

"The object of supplemental proceedings (applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers) is to prevent the ends of justice being defeated. The object of order 38 rule 5 CPC in particular, is to prevent any defendant from defeating the realization of the decree that may ultimately be passed in favour of the plaintiff, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The Scheme of Order 38 and the use of the words `to obstruct or delay the execution of any decree that may be passed against him' in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisfied that there is a reasonable chance of a decree being

2010 (2) ALT 839

(2008) 2 SCC 302

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

passed in the suit against the defendant. This would mean that the court should be satisfied the plaintiff has a prima facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiff should be protected by exercising power under Order 38 Rule 5CPC. It is well-settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiff to an order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiff is not able to satisfy that he has a prima facie case.

The power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out of court settlement, under threat of attachment."

(emphasis supplied)

17. The facts in the case of Bommanasaree Mandir (7th

supra) and in the present case are quite distinct and

separate. In the case on hand, counter is filed, but the

trial Court without considering the same simply passed the

order of attachment before judgment. Whereas, in the

reported decision, the respondent has submitted that he

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

would settle the matter or furnish the security, but

defaulted it. Similarly, in the case of Ajay Agarwal's case

(8th supra), only a conditional attachment was ordered

under Order-38 Rule 5 (2) CPC. Whereas, in the case on

hand, after issuing notice, the defendant has filed a

detailed counter, but the Court below without considering

the counter simply passed a slipshod order stating that the

defendant and his counsel called absent and failed to

furnish security. Accordingly, the principles laid in both

the decisions relied by the learned counsel for the plaintiffs

are not helpful to the plaintiffs in any way.

18. In Raman Tech's case (1st supra), the Hon'ble

Supreme Court dealt with the object, nature and scope of

powers under Order-38, Rule-5 of CPC as indicated above.

In order to avail the benefit of said provision, the plaintiff

has to show prima facie that his claim is bona fide and

valid and also to satisfy the case that the defendant is

about to remove or dispose of the whole or part of his

property with an intention to obstruct or delay the

execution of any decree that may be passed against him.

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

19. Reverting back to the facts of the present case,

though the defendant has filed a detailed counter in all the

applications filed by the plaintiffs for attachment before

judgment, the Court below has not considered the same

and passed slipshod orders for attachment before

judgment. Thus, such order without referring to the facts

of the case, averments in the counter, assigning any

reasons as to the satisfaction of the Court about the prima

facie case of the plaintiffs is illegal. In fact, before passing

such order of attachment before judgment, Court should

give assign reasons as to why the Court has prima facie

satisfied and that how it is a fit case for ordering

attachment before judgment. Such satisfaction must be

arrived by the Court with reference to necessary material

placed before the court by the respective parties.

Therefore, viewed from any angle, such a slipshod order

passed by the trial Court without considering the rival

contentions and without referring to the satisfaction as to

the existence of prima facie case is liable to be set aside.

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

20. Be it stated that thus, the Court before ordering

attachment should be satisfied by cogent evidence that the

defendant is about to alienate the properties and also that

the said alienation is only attempted to delay or to defeat

the decree that may be passed against him. Any such

order based on the affidavits filed on behalf of the

plaintiffs, without giving particulars of the attempts alleged

to have been made and without disclosing source of

knowledge is not sustainable. But in the case on hand, no

such details are either mentioned in the affidavit filed by

the plaintiffs in support of the applications or such

satisfaction is recorded by the court below before passing

the orders impugned.

21. In fact, the trial Court has passed one line cryptic

slipshod order without recording its satisfaction as to the

prima face case made out by the plaintiffs about any

attempts by the defendant to alienate the suit schedule

properties. In that view of the matter, I find that the orders

impugned are not sustainable, liable to be set aside and

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

the Court below has committed jurisdictional error in

passing the said orders.

22. In the result, the Civil Revision Petition Nos.1066,

642, 683 and 1058 of 2021 are allowed. The impugned

orders in I.A.No.259 of 2021 in O.S.No.32 of 2021 dated

23.04.2021, orders in IA No.12 of 2021 in OS No.41 of

2020, dated 25.02.2021 and orders in IA No.100 of 2021 in

OS No.14 of 2021 dated 02.03.2021 and orders in IA

No.291 of 2021 in OS No.33 of 2021, dated 28.04.2021

respectively on the file of the learned XII Additional District

& Sessions Judge, Ranga Reddy at Vikarabad are hereby

set aside. All the above IAs are remitted to the trial Court

for fresh consideration in accordance with the principles

laid by a Division Bench of this Court in Mandala

Suryanarayana's case (9th supra) and Raman Tech's case

(1st supra). The learned trial Judge directed to dispose of

the above said IAs within three months from the date of

receipt of a copy of this order. However, in the

circumstances of these cases, there shall be no order as to

costs.

AVRJ CRP Nos.1066, 642, 683 & 1058 of 2021

23. As a sequel, interlocutory applications, if any pending

in the civil revision petitions, shall stand closed.

__________________________________ A. VENKATESHWARA REDDY, J.

Date: 28.03.2022 Isn