JUDGMENT
P.S. Narayana, J.
1. Heard Sri K. Maheswara Rao, Counsel representing appellant and Sri K. Mohan, Counsel representing the respondent.
2. The plaintiff filed O.S. No. 229 of 2006 on the file of the Court of III-Additional Senior Civil Judge, City Civil Court, Secunderabad, for refund of advance amount said to be due under an agreement of sale as against the appellant herein, who is the defendant in the said suit and he also moved an application in I.A. No. 673 of 2006 in O.S. No. 229 of 2006 on the file of III-Additional Senior Civil Judge, Secunderabad, under Order 38 Rules 5 and 6 read with Section 151 of the Code of Civil Procedure, (hereinafter referred to as Code for the purpose of convenience) praying for a direction to furnish security of Rs. 7,50,000/- for the value of the suit, failing which to attach Flat Nos. 508 and 307 in Survey No. 106 situated at Balreddynagar, Chintal Balanagar Mandal, Ranga Reddy District. The said application was resisted by the appellant that the learned Judge recorded certain reasons and ultimately allowed the said application ordering attachment of the property in question before judgment. Aggrieved by the same, the present civil miscellaneous appeal is filed.
3. Sri K. Maheswara Rao, the learned Counsel representing the appellant had taken this Court through the reasons which had been recorded at Paras 6 and 7 of the impugned order and would maintain that none of the essential ingredients are satisfied while ordering attachment before judgment as discussed by the learned Judge and hence the impugned order cannot be sustained. The learned Counsel also placed reliance on certain decisions.
4. Per Contra, Sri K. Mohan, the learned Counsel representing the respondent would maintain that this is a suit for refund of the advance amount due on the strength of an agreement of sale and the said agreement of sale in question is not in controversy at all. The stand taken by the other side is that payment was already made but the agreement was not returned. The learned Counsel would also maintain that the appellant is not having any other proper security and he is likely to leave the jurisdiction of the Court with a view to defeat the fruits of decree, which is likely to be passed, this aspect had not been seriously controverted and in view of the same, the impugned order does not suffer from any legal infirmity whatsoever.
5. As already specified supra, the present civil miscellaneous appeal is filed by the respondent-defendant in I.A. No. 673 of 2006 in O.S. No. 229 of 2006 on the file of III-Additional Senior Civil Judge, City Civil Court, Secunderabad. The respondent herein as plaintiff filed the said application praying for attachment before judgment. The suit is for recovery of earnest money paid on the date of agreement of sale dated 28-8-2003 and it is stated that the appellant herein agreed to sell Flat Nos. 508 and 307 for a price of Rs. 5,68,800/- and failed to perform his part of the contract and hence he is entitled to recover the said advance amount. It is also stated that the defendant is trying to evade the payment and trying to alienate with a view to defraud him.
6. A counter in elaboration had been filed but however as can be seen from the averments made in the counter, the merits and demerits, which may have to be gone into at the time of trial had been highlighted. The agreement of sale in question is not in serious dispute. The stand taken by him is that though refund of the entire amount was made and inasmuch as in good faith, the return of agreement of sale was not insisted upon the respondent-plaintiff is taking advantage of the same.
7. Whatever may be the stand taken by the respective parties in the application as well as in the counter, the learned Judge recorded certain reasons in Para Nos. 6 and 7 and the submissions at length were made by both the Counsel, the learned Counsel representing the appellant stating that these reasons recorded may not be sufficient in the facts and circumstances of the case and on the contrary the learned Counsel representing the respondent supporting the said order.
8. Reliance was placed on a decision of this Court in Ankinapalli Obul Reddy v. Dadibathina China Gurava Reddy and Ors. , wherein the learned Judge of this Court observed:
The Court has to satisfy itself that the defendant with an intention to obstruct or delay execution of any decree that may be passed against him is in the process of disposing of the whole or any part of the property, then only after recording such satisfaction, it shall call upon the petitioner to furnish security stipulating certain time and if he does not furnish sufficient security, it is open for the Court to order attachment before judgment. But as can be seen from the order the lower Court only extracted contentions of the petitioner as well as the first respondent-plaintiff, but did not record the satisfaction as to whether the petitioner is likely to dispose of the whole or any part of his property, which is a mandatory requirement and if this requirement is not followed the entire attachment becomes void under Sub-rule (4) of Rule 5 of Order XXXVIII. There is no such discussion in the order. Therefore, Court is satisfied that the lower Court failed to comply with the conditions stipulated in Order XXXVIII Rule 5 of C.P.C.
9. The learned Counsel for the appellant also placed reliance on the decision of this Court in G. Pochaiah v. S. Balachandran and Ors. 2005 (2) ALD (NOC) 87, wherein the learned Judge of this Court observed that in a case of attachment before judgment the mandatory requirement before passing an order to be satisfied and it was stated that the Court has to satisfy itself that the defendant is intending to obstruct or delay the decree that may be passed against him and reproduction of language of provision or bare mention of apprehension without disclosing source of such apprehension may not be sufficient compliance with the mandatory provision of Order 38 Rule 5 of the Code of Civil Procedure.
10. It is, however, brought to the notice of this Court that except the averments made in the affidavit filed in support of the application no other third-party affidavits or any other material had been placed before the Court. Apart from this aspect of the matter, the reasons, which had been recorded in Paras 6 and 7 appear to be just reproduction of the language of the provisions specified supra. The learned Judge may have to appreciate all the facts and circumstances of the case and may have to arrive at a conclusion.
11. However, the learned Counsel representing the respondent-plaintiff in the suit expressed apprehension that if the matter is remitted again in the meanwhile the appellant may resort to making alienation of the property in question.
12. In view of the same, it is made clear that status quo as on today to be maintained till appropriate orders are made by the learned III-Additional Senior Civil Judge in this regard. The matter is remitted to the learned Judge to give opportunity to the parties to place additional material also in relation to their respective contentions and submissions and after receiving such additional material to pass appropriate orders in accordance with law.
13. Accordingly, the civil miscellaneous appeal is allowed to the extent indicated above. No order as to costs.