Madras High Court
Kuttiappa Gounder vs P.M. Rangasami on 17 March, 1992
Equivalent citations: (1992)2MLJ362
ORDER Srinivasan, J.
1. The procedure adopted by the court below is not satisfactory. Notice on interim attachment was ordered on 10.7.1991 returnable on 5.8.1991. On 5.8.1991, the court below has made the endorsement as follows:
Respondent absent affixed. Properties attached on 12.7.1991. Item I valued at Rs. 75,000. Item II valued at Rs. 1,25,000. Service sufficient. Respondent called absent set ex parte. Petition is allowed with costs. Attachment is made absolute.
2. The suit is only for Rs. 54,360. Learned judge has not even applied his mind as to whether it is necessary at all to attach two items worth about Rs. 2,00,000 in all. When the first item is worth, according to the order of the learned Judge Rs. 75,000, he need not have directed attachment of item 2. At any rate, learned Judge has not considered the provisions of Order 5, Rule 15 and Rule 17, C.P.C. Under Order 5, Rule 15, C.P.C., if the defendant is absent from his residence at the time when the service of summons is sought to be effected on him, the process server must be satisfied, (i) that there is likelihood of the defendant being found at the residence within a reasonable time, and (ii) he has no agent empowered to accept the service of summons on his behalf and in that event, service may be made on any adult member of the family, whether male or female, who is residing with him.
3. Order 5, Rule 17 is to the effect that when the defendant or his agent refuses to sign the acknowledgment or where the serving officer after using all due and reasonable diligence cannot find the defendant who is absent from his residence and there is no likelihood of his being found at the residence within a reasonable time, and if there is no agent or other person to receive the summons, the Serving Officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house, in which the defendant ordinarily resides, and shall then return the original to the court with report endorsed thereon or annexed thereto stating that he has so affixed the copy, the circumstances under which he did and so, the name and address of the person by whom the house was identified and in whose presence the copy was affixed. The order of Learned Judge does not disclose whether the procedure prescribed by Order 5, Rule 15 or Rule 17, C.P.C. was followed in the present case.
4. In the circumstances, the order making the interim attachment absolute is unsustainable. It is therefore set aside. I.A. No. 595 of 1991 is remanded to the trial court for disposal in accordance with law. As the defendant has entered appearance, it is not necessary for the court to issue fresh notice to him. Defendant shall be permitted to file counter affidavit in that application and if necessary, the parties may be permitted to file additional pleadings and adduce evidence if so advised. The court below shall hear both the parties and pass orders on the application for attachment. The interim attachment effected shall continue to be in force till the disposal of I.A. No. 595 of 1991. The civil miscellaneous appeal is allowed on the above terms. There will be no order as to costs.