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G. Kuppathi Mudaliar Vs. V. Murugesan - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai High Court
Decided On
Case NumberC.R.P. No. 2368 of 1981
Judge
Reported inAIR1982Mad49
ActsCode of Civil Procedure (CPC), 1908 - Sections 115 (2) - Order 38, Rules 4, 5 and 6 - Order 3, Rule 4 - Order 19, Rule 3
AppellantG. Kuppathi Mudaliar
RespondentV. Murugesan
Appellant AdvocateM.N. Padmanabhan, Adv.
Respondent AdvocateK.N. Balasubramaniam, Adv.
Excerpt:
.....or obstruct the decree that may be passed against..........that though the statutory language used in 0. 38, r. 5, c.p.c. has not been repeated in the affidavit filed in support of the application for attachment before judgment, the essential requisites for ordering attachment before judgment can be spelt out in the affidavit filed and as the court has ordered conditional attachment, there is compliance of the provisions contained in 0. 38, r. 5 (1), c. p. c. and the order of attachment cannot be said to be void for non-compliance of o. 38, r. 5 (1), c. p. c. the jurisdiction of the court to order attachment before judgment arises only when it is satisfied by affidavit or otherwise that the defendant is about to dispose of the whole, or any part of his property with the intention to obstruct or delay the execution of the decree that may.....
Judgment:
ORDER

1. The plaintiff is the petitioner before this court and the defendant is the respondent. The petitioner filed a suit against the respondent for recovery of certain amounts due on account of dealings which the respondent had with the petitioner. The petitioner filed a petition under 0. 38, R. 5, C.P.C. for attachment before judgment of the amounts due to the respondent and lying with the Executive Engineer-cum Administrative Officer, Tamil Nadu Housing Board, Vellore. Attachment before judgment was ordered by the vacation court, without asking for security from the respondent or asking the respondent to show cause why he should not furnish security as contemplated under O. 38, R. 5 (1), C. P. C. On contest by the respondent, the court held that the attachment effected is void as it has been done in non-compliance of 0. 38, R. 5 (1), C. P. C. and there are no supporting affidavits from third parties to show that the respondent is attempting to, defraud his creditors by any overt act. On this finding, the attachment effected was raised. The petitioner has hence filed the civil revision petition before this court.

2. The learned counsel for the petitioner contended that though the statutory language used in 0. 38, R. 5, C.P.C. has not been repeated in the affidavit filed in support of the application for attachment before judgment, the essential requisites for ordering attachment before judgment can be spelt out in the affidavit filed and as the court has ordered conditional attachment, there is compliance of the provisions contained in 0. 38, R. 5 (1), C. P. C. and the order of attachment cannot be said to be void for non-compliance of O. 38, R. 5 (1), C. P. C. The jurisdiction of the court to order attachment before judgment arises only when it is satisfied by affidavit or otherwise that the defendant is about to dispose of the whole, or any part of his property with the intention to obstruct or delay the execution of the decree that may be passed against him. So the sine qua non for an order of attachment, before judgment is the mala fide intention and the conduct of the defendant in disposing of or about to dispose of his property with the dishonest intention of defeating or delaying the decree that may be passed in the suit.

In the instant case, the allegation made in the affidavit filed in support of the petition for attachment before judgment is to the effect that if the amount due to the respondent and lying with the Executive Engineer is not attached, the petitioner will be put to irreparable loss and hardship and the decree that he may obtain will become a paper decree. It is not stated in the affidavit that the respondent was about to withdraw or receive the money due to him from the Executive Engineer with the mala fide intention to obstruct or delay the execution of the decree that mad be passed against him. An order of attachment before judgment is a drastic remedy and the power he's to be exercised with utmost care and caution, as it may likely to ruin the reputation and business of the party against whom the power is exercised. As the Court must act with the utmost circumspection before issuing an order of attachment the affidavit file in support of the application, for attachment before judgment must clearly establish that the defendant, with intent to obstruct or delay the execution of the decree that may be passed against him is about to dispose of the whole or any part of his property. As these two essential requisites have not been set forth in the affidavit filed by the petitioner, the court below was fully justified in raising the attachment.

3. Before ordering attachment before judgment, the first step is that the Court must be satisfied, by affidavit or otherwise, that the defendant is about to dispose of or remove the whole of' part of his property and that is with the intention to delay or obstruct the decree that may be passed against him. The second step is that the Court must direct the defendant to furnish security to produce the property or such portion thereof as may be sufficient to satisfy the decree or to appear and show cause who he could not furnish security. If the defendant fails to show cause or fails to furnish security, the Court may order attachment of the property.

When the order of attachment is made without complying with these provisions, the attachment is void. However, in a case where the Court directs conditional attachment of the whole or any portion of the property, it can be done simultaneously while ordering notice under O. 38, R. 5 (1), C. P. C. In the instant case, it is obvious that the attachment has been effected without complying with the provisions contained in O. 38, R. 5 (1) C. P. C. and the attachment effected is, the fine, void. The learned counsel for the petitioner, however, contended-that this is a conditional attachment ordered under O. 38, R. 5 (3), C. P. C. and it can be ordered simultaneously along with the notice under O. 38, R. 5 (1), C. P. C. What has been ordered by court, in the instant case, is interim attachment and not conditional attachment. It is difficult to spell out a case of conditional attachment from the order passed by the vacation court. As the attachment effected is not in compliance with O. 38, R. 5 (1), C. P. C., it is void and that has been rightly set aside.

4. The contention of the learned counsel for the respondent that no revision lies to this court in view of Section 115(2), C. P. C. cannot be accepted as the order passed in the instant case is one under O. 38, R. 4, C. P. C. and not an order undergo. 38, R. 6 (1).

5. In the result, there is no merit in the Civil revision petition and it accordingly stands dismissed, in the circumstances, without cost. It is open to the Petitioner to file a fresh application for attachment before judgment if considered necessary after complying with all the legal requirements under O. 38, R. 5, C. P. C.

6. Petition dismissed.


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