V. Ramalingam vs The Karur Vysya Bank Ltd.

K. Gnanaprakasam, J.—Both the Civil Miscellaneous Appeals are directed against the Order dated 20.8.91 passed by the Sub-Court,

Villupuram in I.A. Nos. 312 and 313 of 1990. The First respondent in this appeal viz., the Karur Vysya Bank Ltd., the plaintiff, had instituted a

suit against the appellant herein and others in O.S. No. 65 of 1989 on the file of the Sub-Court, Villupuram to pass a preliminary decree of

mortgage for Rs. 2,77,188/- together with interest and costs and also prayed for final decree to bring the properties hypothecated for sale.

Admittedly, the suit is pending. During the pendency of the suit, the first respondent herein had filed two applications in I.A. No. 312 and 313 of

1990 under Order 38, Rule 5 of CPC to pass an order of Attachment before Judgment of the amounts payable by the second respondent viz., (1)

Secretary, Pondicherry Housing Board, Pondicherry, (2) The Superintending Engineer, P.W.D., Cuddalore, South Arcot District respectively. The

trial Court, by its order dated 20.8.91, allowed the applications. Aggrieved by the same, the present appeals have been filed.

The learned advocate for the appellant has submitted that the suit is based upon the mortgage executed by the appellant and the suit has been

instituted for passing a preliminary decree of mortgage for the recovery of the amount due by the appellant and the suit is pending adjudication. As

such, the petitions filed by the first respondent seeking an order of attachment before judgment of the amounts lying in the hands of the second

respondent is not sustainable. As the amount due by the appellant, is a secured debt, and the first respondent has to exhaust the remedies available

for a mortgagee and only thereupon, he can seek for a personal decree against the appellant and in the said circumstances, the petitions for

attachment before judgment are not maintainable.

The learned advocate for the appellant has further submitted that one of the Garnishees viz., the Secretary, Pondicherry Housing Board,

Pondicherry is situated outside the jurisdiction of the Court, before which, the suit has been instituted and the first respondent plaintiff has not

followed the procedure contemplated u/s 136 of C.P.C., in effecting an order of attachment before judgment and therefore, the petition is not

maintainable.

The appellant also taken me through the affidavit filed by the first respondent herein in support of the petition under Order 38, Rule 5 , of C.P.C.

wherein it is stated that"" the security offered by way of equitable mortgage is not sufficient to cover the loan. Further, the value of the house, being

in the village, has come down. The plaintiff also, understands that the defendant has many other out standings. In the above circumstances, for the

immediate realisation of the amounts and as the security is not sufficient, the petitioner is filing this petition for attachment before judgment of the

amounts lying in the hands of Pondicherry Housing Board."" It is submitted that the averments set forth in the affidavit are not at all sufficient to pass

an order of attachment before judgment and none of the requirements set forth in Rule 5of Order 38 of C.P.C., are set out in the affidavit nor

established before the Court below and in the said circumstances, the applications are not maintainable.

Now, the question remains to be answered is whether the petition filed by the first respondent plaintiff for an order of Attachment before

Judgment, in a suit on a Mortgage before complying with the procedure contemplated under Rule 5, Order 38, of C.P.C., is maintainable.

Order 34 of C.P.C. regulates the procedure to be followed in respect of suits relating to mortgages of immovable property. Rule 2of Order 34

prescribes about passing of preliminary decree and Rule 5 speaks about the final decree in a suit for sale. Order 34, Rule 6, of C.P.C. is the

relevant provision for our case, which states,

Where the net proceeds of any sale held under Rule 5 are found insufficient to pay the amount due to the plaintiff, the Court, on application by him

may, if the balance is legally recoverable from the defendant otherwise than out of the property sold, pass a decree for such balance.

The Section is so clear that the mortgagee viz., the plaintiff, who is the first respondent in the appeal has to proceed to recover the amount due, by

bringing the property hypothecated for sale and in case, the sale proceeds are insufficient to meet the amount due and payable, then only, he can

file an application to the Court to pass a decree for such balance. The first respondent/plaintiff having not exhausted the remedy contemplated

under Order 34, Rule 5 of C.P.C., it is not open to him to file an application for attachment before judgment of the amount lying in the hands of

Garnishee. It has already been stated supra that the suit debt is a secured debt and as such, the plaintiff in the suit has to bring the property

hypothecated for the sale, for realisation of the amount and in the case of any deficiency to meet the claim of the plaintiff, then only he can resort to

file an application to pass decree and then only he can file a petition to pass an order for attachment before judgment of the property lying in the

hands of Garnishee or even some other immovable property to realise the amount and as such, the petitions of the first respondent/plaintiff seeking

for an order of attachment before judgment are not maintainable. The said view is also fortified in the judgment of The The Allahabad Bank Ltd.

Vs. Rana Sheo Ambar Singh and Others,

The appellant has also submitted that the averments made in the affidavit are not sufficient to pass an order of attachment before judgment. The

essential requirements which must be proved to the satisfaction of the court are (1) the defendant is about to dispose of the whole or any part of his

property; or (2) the defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court and (3)

that the defendant is intending to do so to cause obstruction or delay in the execution of any decree that may be passed, against him. Vague and

general allegations that the defendant is about to dispose of the property or remove it beyond the jurisdiction of the Court, unsupported by

particulars, would not be sufficient compliance with the rule. It is incumbent upon the plaintiff to state the grounds on which he entertains the belief

of apprehension that the defendant would dispose of or remove the property or to give the source of his information and belief in the matter.

Further, the remedy of attachment before judgment is certainly an extraordinary one. The Court has therefore, to act with the utmost

circumspection and with maximum care and caution before issuing such an order of attachment, otherwise it would become a weapon of

oppression in the hands of unscrupulous plaintiffs. The Court must advert to the provisions of the CPC in this regard and to investigate the

allegations thrown against the defendant and satisfy itself that a case for attachment before judgment has been made out and then pass a requisite

order. A perusal of the affidavit filed by the first respondent does not at all establish any of the grounds under which an order of attachment before

judgment could be granted under Order 38, Rule 5 of C.P.C. The observation of the trial Court that the benefit that would be accrued to the

plaintiff would outweigh the loss or inconvenience that would be caused to the defendant by passing an order of attachment before judgment is not

at all a proper, valid and good ground in the case of Attachment before Judgment. The order of attachment should not be used as a lever of

oppression in the hands of the plaintiff to coerce the defendants to pay the debts. In the said circumstances, the petitions filed by the first

respondent/plaintiff to pass an order of attachment without making any requisite and proper averments in the affidavit is bad in law.

The learned advocate for the appellant also submitted that the plaintiff has not followed the procedure contemplated u/s 136 of C.P.C., in

carrying out an attachment before judgment of the amount lying in the hands of Garnishee who is situated outside the jurisdiction of the Court

before which the suit has been laid. Such an argument was not advanced before the trial Court and in the absence of the same, the trial Court did

not entertain any finding in the said aspect and hence, the argument cannot be canvassed before this Court. But, however, it is left open to the

appellant to advance the said argument before the trial Court, if it is really required and called for.

From the discussions made above, I come to the conclusion that the respondent/plaintiff cannot maintain an action for an order of attachment

before judgment before exhausting his remedy provided under Order 24, Rule 5 of C.P.C. I further hold that the Court below was not justified in

allowing the petitions filed by the first respondent/plaintiff seeking for an order of attachment before judgment as they are not maintainable, and the

finding is liable to be set aside and the same is hereby set aside. In the result, the Civil Miscellaneous Appeals are allowed. But, however, there will

be no orders as to costs.