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Southern Petrochemical … vs S. Rathish Kanna on 7 October, 2003

Madras High Court
Southern Petrochemical … vs S. Rathish Kanna on 7 October, 2003
Equivalent citations: 2003 (4) CTC 344
Bench: V Kanagaraj


ORDER

1. The Civil Revision Petition filed under Section 115, C.P.C. praying to set aside the fair and decretal dated 16.4.1999 made in I.A.No. 6610 of 1999 in O.S.No. 2356 of 1999 by the Court of XI Assistant City Civil Judge, Madras.

2. Private notice served and the petitioners have filed an affidavit of service and the name of the respondent has also been printed, but he has not chosen either to appear in person or through his counsel, when the above matter was taken up for consideration and hence, this Court is left with no choice but to hear the petitioners and pass orders and having regard to the materials placed on record and in accordance with law.

3. Tracing the history of the above civil revision petition having come to be filed, it comes to be known that the respondent herein has filed the suit in O.S.No. 2356 of 1999 before the Court of XI Assistant City Civil Judge, Madras for recovery of a sum of Rs. 83,12,5.95. Pending the suit, the respondent/plaintiff has filed the petition in I.A.No. 6610 of 1999 under Order 38 Rule 5 C.P.C. praying to direct the defendants to furnish security to the tune of Rs. 1,20,250.70 lest to pass an order of Attachment Before Judgment of the defendants’ Company and, since, the said petition was allowed by the Court below, the defendants in the suit have come forward to file the civil revision petition on certain grounds as broughtforth in the grounds of revision.

4. The learned counsel for the petitioners submits that no notice was served and the order was passed ex parte even when the respondent filed the suit and, hence, it is not only against the letter and spirit of law but also goes against the high principles of natural justice and, hence, the order is bad.

5. In consideration of the facts pleaded, having regard to the materials placed on record and upon hearing the learned counsel for the petitioners, a careful perusal of the order of the lower Court would show that it is an ex parte order passed without any opportunity being given to the petitioners, which is warranted under the relevant provisions of law particularly under Order 38, Rule 5, C.P.C., which reads as follows:

“Attachment Before Judgment-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.

(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.”

6. Order 38, Rule 5(1), CPC postulates that the Court must be first of all be satisfied that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, only then, under such contingencies, the Court may direct the defendant within a time to be fixed by it, either to furnish security in such sum specified, to produce and place at the disposal of the Court, when required, the said property or the value or to appear and show cause as to why he should not furnish security.

7. This is Sub-rule (1) of Rule 5 of Order 38. While so, Sub-rule (4) of Rule 5 of Order 38 is specific to the effect that if an order of attachment is made without complying with the provisions of Sub-rule (1) of this rule, such attachment shall be void.

8. Therefore, no mention need be necessary on the order of attachment made directly, as it has been done by the lower Court in its order dated 16.4.1999 straight away attaching the property before judgment is undoubtedly arbitrary, unreasonable, illegal and it becomes only liable to be dismissed in limini and the same is ordered accordingly.

In result,

(i) the above civil revision petition succeeds and the same is allowed;

(ii) the order dated 16.4.1999 made in I.A.No. 6610 of 1999 in O.S.No. 2356 of 1999 by the Court of XI Assistant City Civil Judge, Madras is set aside;

(iii) consequently, CMP.No. 7940 of 1999 is closed.

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