Madras High Court
M.S.Sakthivel vs R.Sekar on 4 March, 2002
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Dated: 4-3-2002
Coram
THE HONOURABLE MR. JUSTICE M. KARPAGAVINAYAGAM
C.R.P. No.916 of 2001
1. M.S.Sakthivel
2. M.S.Viswanathan .. Petitioners
Vs.
R.Sekar .. Respondent
Civil Revision Petition against the Order dated 8.10.1999 in
I.A.No.523 of 1999 in O.S.No.408 of 1999 on the file of the Subordinate
Judge, Erode.
! For Petitioners : Mr.V.Lakshminarayanan
^ For Respondent : Mr.S.K.Nachimuthu
: ORDER
The petitioners are the defendants in the suit filed by the respondent.
2. The respondent/plaintiff filed an application to direct the petitioners/defendants to furnish security to the extent of the suit amount or to appear before the Court to show cause why they should not be asked to furnish security under Order 38 Rule 5 C.P.C. Accordingly, the trial Court on 1.7.1999 issued notice to the petitioners/ defendants returnable by 16.7.1999 and they were further directed to furnish security. On 16.7.1999, the defendants entered appearance through counsel and a counter was also filed on that date. On the same day, further order was passed by the trial Court directing the petitioner to furnish security by 8.10.1999. When the matter was taken up on 8.10 .1999, the trial Court, without conducting any enquiry, straightaway ordered attachment, since the security was not furnished. This order has been challenged in this Civil Revision Petition by the petitioners/defendants.
3. I heard the learned counsel for the parties.
4. According to the respondent/plaintiff, the petitioners/ defendants borrowed loan from the plaintiff to run the joint family business and thereafter, they filed a insolvency petition and since the plaintiff felt that the defendants may not prosecute the said insolvency petition and they may dispose of the property, he filed a suit for recovery of the suit amount, namely, Rs.15 Lakhs and pending suit, he asked for furnishing of security.
5. The impugned order and other records would show that on 1.7.1999, notice was ordered in the interlocutory application returnable by 16 .7.1999 and the defendants were to furnish security by then. On 16.7 .1999, a counter was filed. Even without conducting any enquiry, the trial Court further directed petitioners/defendants to furnish security by 8.10.1999. When the matter was called on 8.10.1999, the trial Court, on noticing that the security was not furnished, straightaway ordered attachment by 11.11.1999.
6. As correctly pointed out by the learned counsel for the petitioners, the essential requirements for invoking the power of the Court to effect an order of attachment under Order 38 Rule 5(1) C.P.C., the Court must be satisfied that the defendant is about to dispose of the whole or any part of his property or the defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction with a view to cause obstruction or delay the execution of any decree that may be passed against him.
7. While passing the impugned order, it is clear that the trial Court has not taken into consideration all these requirements.
8. Merely because the security has not been furnished, the trial Court hastened to pass an order of attachment, even though counter has been filed. The trial Court ought to have given an opportunity to the petitioner/defendants to contest the interlocutory application pending suit, especially, when the counter had already been filed.
9. As laid down by this Court as well as the Supreme Court in various decisions, viz., (1) PAPAMMAL v. CHIDAMBARAM (AIR 1984 MADRAS
70); (2) PALGHAR ROLLING MILLS PVT. LTD v. VISVESVARAYA IRON AND STEEL LTD (AIR 1985 KARNATAKA 282); and (3) CELVEL ENTERPRISES v. M/S. ELCONMENT LTD (1991-2-L.W.617), the remedy of an attachment before judgment is certainly extraordinary. If granted, it casts an obligation on the party against whom it is made, even before he is heard in defence to the suit. The Court has therefore to act with utmost circumspection and with maximum care and caution before issuing such an order.
10. As indicated above, in this case, the petitioners/defendants were very much available before the Court. Without giving opportunity to them to satisfy the Court that the ground for attachment was not made out, the trial Court ought not to have passed the order of attachment straightaway.
11. Therefore, the impugned order is set aside and the matter is remitted back to the trail Court for considering the application filed by the respondent/plaintiff and the counter filed by the petitioners/ defendants and passing an order in accordance with law after hearing the counsel for the parties.
12. In the result, the Civil Revision Petition is allowed.
4-3-2002 Index: Yes (I) dpp To The Subordinate Judge, Erode.
C.R.P. No.916 of 2001M. KARPAGAVINAYAGAM, J.
After pronouncement of the order, the learned counsel for the respondent requests this Court to direct the trial Court to dispose of the application in question within two weeks. Accordingly, the trial court is directed to dispose of the application in question within two weeks from the date of receipt of this order.
4-3-2002 M. KARPAGAVINAYAGAM, J.
dpp Order in C.R.P. No.916 of 2001;