P. Ramaswamy vs Dhandayuthapani Finance, Sankari

Defendant is the petitioner. Plaintiff filed 0. S. 41 of 1986 on the file of the Sub-Court, Sankari, based on a promissory note dated 3-12-1985

for Rs. 50,000/- executed by defendant in favour of plaintiff. Pending disposal of the suit. I. A. 174 of 1986 was filed under Order 38 Rule 5 read

with S. 151, C.P. C. for attachment to be effected before judgment of Ashok Leyland Lorry as described in the schedule, and which belongs to

defendant.

In the supporting affidavit, it was claimed that in spite of repeated demands, the amount had not been paid, and as the lorry owner is heavily

indebted to several persons, and with a view to defraud the plaintiff defendant was making arrangements to sell the said lorry to one Palanisami

about which he had come to know through one Sengoda Gounder, and as such, attachment before judgment of the property mentioned in the

petition has to be ordered if the respondent fails to furnish proper security after notice to the respondent. Otherwise the Petitioner will be put to

serious loss ''and hardship. Therefore, he has asked for an order of attachment before judgment by issuing notice to respondent for furnishing

property as security.

Even though in the affidavit, he had specifically asked for attachment before judgment only after defendant fails to furnish proper security after-

notice, the Court below had passed the following order: -

Heard counsel. Perused documents. Notice to respondent to offer security for Rs. 50,000 failing which to attach by 11-3-1986.

Mr. M. Srinivasan, learned counsel for the defendant, would submit that the order as passed overlooks the mandatory requirements of Order

38, Rule 5, C.P.C. and therefore, by virtue of rule 5(4), it is void. He would lay considerable stress on what plaintiff had guardedly asked for, and

still the court having gone beyond, it and passed an order as above, in total contravention of Rule 5. He refers to the decisions in Madhavan Pillai

Somanatha Pillai and Another Vs. State of Kerala and Others, ; Ittavira Mathai Vs. Varkey Varkey and Another, , Vasu Vs. Narayanan

Nambooripad, , Ovation International India P. Ltd. In re, (1969) 39 Com Cas 595 and W. Pappammal Vs. I. Chidambaram, , in support of his

contention that the order as passed had not taken into account the required circumstances to be established.

In view of the decision in W. Pappammal Vs. I. Chidambaram, , wherein the other decisions have been already considered except the last two,

it is now to be decided as to how further order as passed satisfies the requirements of Rule 5.

6.No doubt, plaintiff in the affidavit had referred to the name of a person, who is the proposed purchaser and the name of the person who gave the

information. These particulars to a considerable extent satisfy the requirements of Rule 5(l). Therefore, this is not an instance where a mere

mechanical reproduction of the said rule had found a place in the supporting affidavit.

The next point is, whether the other requirements of Rule 5 have been followed or not. Once the satisfaction required the earlier part of Rule 5(l)

is satisfied, tinder the latter part, the court may direct the defendant by fixing a date within which either to furnish security as specified in the order

to produce and place at the disposal of the court, when required, the said property or the value of it, or such portion thereof as may be sufficient to

satisfy the decree, or to appear and show cause why he should not furnish security. Hence, it is open to the Court either to ask for security coupled

with production of the property or to remit its value or such portion of the decree as may be found reasonable, and if not, to issue notice to

defendant to appear and show cause as to why he should not furnish security. Hence, it is for the court, either to ask for earlier part of the

requirements or to direct defendant to appear for showing cause relating to furnishing of security. Plaintiff himself having asked for issue of notice,

as a first requirement, before attachment could be effected. But, before ever defendant is heard by court about furnishing of security, the order of

the Court below had gone beyond the pleas of plaintiff by imposing a default clause resulting in attachment being effected. It is stated that, on the

date on which the bailiff served the notice in form 5 in Appendix F, he had straightway attached the lorry and had not even produced it before

court, but left it strangely with the plaintiff, which is another irregularity committed in carrying out the order. Under Rule 5(4), if the requirements of

Rule 5(l) are not complied with, there is no alternative left than to hold that such an attachment is void.

7A. Mr. Somasundaram, learned counsel for the plaintiff, would first claim that the order as passed being only an interim order (though not

properly worded), the revision would not lie. In Vasu Vs. Narayanan Nambooripad, , under similar situation, it was held that when power is

conferred on a High Court, under S. 115, C. P. C. to call for records of a subordinate court in which no appeal lies to it, existence of an appeal to

another subordinate court would not oust the power of revision to entertain such matters.

The next contention put forth by him is that the order as passed, was not confined to Rule 5(l), but also Rule 5(3), and hence no exception could

be taken to the manner in which the order has been passed. There is nothing to spell out in the order that it is a conditional order of attachment,

and as pointed out above, when plaintiff himself has asked for issue of notice to the defendant to appear and show cause as to why he should not

furnish security, there was no scope for the court below to pass the order under revision; beyond what had been prayed for. Hence, attachment

order is void, and the plaintiff is bound to hand over the lorry to defendant in the presence of the bailiff on or before 21-4-1986 and while taking

delivery, the condition in which it is being returned to be meticulously noted, and the claims made by the respective parties to be recorded, so that

later on defendant claim actual damages, suffered due to the plaintiff having kept, custody of the lorry, being fully aware that it could be only in the

custody of the court. It is now left to defendant in appropriate proceedings to also claim damages suffered for loss of custody of the lorry and for

any damages caused to the illegal attachment effected at the instance of the plaintiff.

Hence, this revision petition is allowed with costs. Counsel''s fee Rs. 150.

Revision allowed.