Madras High Court
K. Jayalakshmi vs S.M. Muthaier on 19 July, 1988
Equivalent citations: (1989)1MLJ411
ORDER Srinivasan, J.
1. This appeal is against an order passed on 43.1988 by the Subordinate Judge, Dindigul making the interim attachment absolute.
2. The respondent herein filed a suit for recovery of a sum of Rs. 51,300 with interest on Rs. 45,000 at 24% per annum from the date of plaint. The suit is based on two promissory notes executed by the defendants. While the suit was pending, the respondent applied for attachment of the properties. In support of the application for attachment the respondent had made the following averments:
... Now, already 1st defendant's husband wound up his business at Madras and is attempting to sell the same to third parties. She has only one house at Madurai with intention to obstruct and delay the execution of the decree that may be passed in this suit, she is about to dispose off the whole of the property belonging to her and to secrete the consideration herself. If she does so, I may not be able to recover any amount. I have also filed a third party affidavit to substantiate the same. Hence this application has been filed by me for an order of attachment before judgment of the properties mentioned in the application and an ad interim attachment pending disposal of this application. This application is filed for the same.
3. In support of his affidavit the respondent had also obtained a third party affidavit and filed the same in Court. That affidavit is to the effect that the first defendant had closed his shop and he was arranging for the sale of this house. On this application for attachment, the Court passed an order on 2.12.1987 directing notice calling upon the appellant to furnish security and interim conditional attachment.
4. After the receipt of notice, the appellant engaged a counsel who appeared before the Court and applied for time for filling counter. That was on 11.12.1987. One Thiru Kadar Batcha appeared for the appellant. Time was granted till 7.1.1988 for filing counter and on 7.1.1988 no counter was filed and further time for filing counter was prayed for. The Court adjourned the matter to 4.3.1988 for counter and enquiry. ON 4.3.1988 no counter was filed in Court and the Court passed an order which is as follows:
Counter is not filed. In the interest of justice the petition is allowed, attachment made absolute.
5. It is the said order which is challenged in this appeal. Learned Counsel for the appellant contends that the interim order of attachment made on 2.12.1987 is not in accordance with the provisions of Order 8, Rule 5, Code of Civil Procedure and it is, therefore, null and void. According to learned Counsel the order dated 4.3.1988 making the interim attachment absolute is also void. Learned Counsel placed reliance upon a decision of this Court in Pappammal v. Chidambaram . In that case, the order of the Court was in the following terms:
Heard, interim attachment and notice 10th February, 1982.
Even on 8th February, 1982, the defendant filed his counter affidavit and was ready for enquiry on 10th February,' 1982. After the matter was adjourned several times the Court passed a final order in the following terms:
... The only objection raised by the respondent (petitioner in the civil revision petition) (words in brackets nine) is that she was not given show cause notice before attachment is ordered to furnish security. In every order of attachment before judgment, if security is furnished, the attachment is not effected. Hence I.A. No. 1209 of 1982 is allowed and the attachment already effected is made absolute.
6. Ratnam, J. who considered the validity of those orders held on the facts of the case that the petition for attachment did not even contain the necessary particulars. He held that the provisions of Order 38, Rule 5 of the Code of Civil Procedure were not complied with and the notice in that case was not issued in the proper form. He held that the attachment in that case was void and set aside the order of the Court below. While discussing the law on the subject, he observed thus:
...If Order 38, Rule 5(1) and (3), Civil Procedure Code are so construed as to mean that in all cases, any order of attachment can be passed only after the defendant appears and furnishes security or otherwise makes arrangements to the satisfaction of the Court to meet the liability under the decree that may be eventually passed in response to a notice issued under Order 38, Rule 5(1), Civil Procedure Code, then that would result in the defendant being enabled to defeat the very power of the court to attach and also afford protection by the process of attachment and even the very decree that may be eventually passed, by resorting to dilatory tactics resulting in his or her not receiving the notice at all and by disposing of all his properties mean while. With a view to safeguard the interest of a plaintiff during the interregnum between the filing of the application for an order of attachment and the service of notice on the defendant and his or her appearing in response to that with reference to matters mentioned in the notice and showing cause, etc., the Court is empowered under Order 38, Rule 5(1), Civil Procedure Code, to direct a conditional attachment of the whole or any portion of the property specified in the application for attachment. In this, connection, the language of Order 38, Rule 5(3), Civil Procedure Code, should also be borne in mind. The expression used therein is 'conditional attachment' and that would mean that it is not absolute attachment but only in the nature of dependent attachment or an attachment which would ensure and depend upon certain conditions, namely, the defendant appearing and showing cause or not. In other words, such a conditional attachment would be operative during the interragnum or the intervening time. If it were not so, the defendant can, mean while, part with all his or her valuable properties, pending receipt of a notice under Order 38, Rule 5(i), Civil Procedure Code, and the Court as well as the plaintiff, who may be successful eventually, would be left helpless high and dry and justice would be defeated, to prevent which the power of attachment is conferred on courts under Section 94(b), Civil Procedure Code, to be exercised in conformity with and after satisfying the requirements of Order 38 Rule 5(1) and (3), Civil Procedure Code. That is why the power to direct a conditional attachment of the whole or any portion of the property is also made available under Order 38, Rule 5(3), Civil Procedure Code, which can be exercised by the Court while passing an order under Order 38, Rule 5(1), Civil Procedure Code. It is easy to perceive the spirit and the object behind Order 38, Rule 5(1) and Order 38, Rule 5(3), Civil Procedure Code. In an application for attachment before judgment, the court, if satisfied that the requirements of Order 38, Rule 5(1), Civil Procedure Code, have been made out, may issue a notice to the defendant in appropriate from conforming to the requirements of Order 38, Rule 5(1), Civil Procedure Code, for all or any of the purposes mentioned therein and at the same time direct a conditional attachment of the whole or any part of the property under Order 38, Rule 5(3), Civil Procedure Code. If, in response to such a notice, the defendant appears and shows cause, or otherwise satisfies the Court, then the Court may proceed to withdraw the attachment effected earlier, under Order 38, Rule 6(2), Civil Procedure Code. If, on the other hand, the defendant does not show cause why he or she should not furnish security or fails to furnish security, then it will be open to the court to proceed under Order 38, Rule 6(1), Civil Procedure Code, and the Court may order attachment of the property specified in the application of such portion thereof, as appears sufficient to satisfy the decree that may be passed, in the suit, in the appropriate form, namely, form, 7-A in Appendix F.
7. As pointed out by the learned Judge in that case, if the Court is satisfied that the defendant is about to dispose of the whole or part of his property with intent to obstruct or delay the execution of any decree that may be passed in the suit, the Court is entitled to pass an interim order of conditional attachment even before notice and if the defendant fails to show cause why he should not be made to furnish security, the Court may order attachment by making the interim order absolute. In the present case, the respondent has made the necessary averments in the affidavit filed in support of the application for attachment and the same was supported by another affidavit of a third party. The court below was satisfied within the meaning of Order 38, Rule 5(1) and ordered notice and interim conditional attachment as provided in Sub-rule (3).
8. Thus, the order dated 2.12.1987 called upon the defendant to furnish security and also directed interim conditional attachment. The appellant, who had engaged a counsel and appeared before the Court on 11.12.1987, had been protracting the proceedings till 4.3.1988. He did not furnish any security or show cause why an order should not be made against him. He could have filed a counter affidavit denying the allegations made in the application for attachment and established before the Court that there was no warrant for making an order of attachment. Without dour so, the appellant indulged in protracting the proceedings. In the circumstances, the Court bel(sic) was right in passing an order of attachment af(sic) waiting for more than three months.
9. The other decision cited by learned Counsel for the appellant is that of Sathiade v., J. in Ramaswamy P. v. Sri Dhandayuthapani Finance, Sankwi 99 L.W. 404. The order passed by the Court was, Heard counsel, perused documents. Notice to respondent to offer security for Rs. 50,000 failing which to attach by 11th March, 1986.
The prayer in the petition filed in that case for attachment was itself one for attachment before judgment, if the defendant failed to furnish proper security after notice. In spite of that prayer, the Court passed a rolled-up order directing attachment on failure on the part of the respondent to offer security for a sum of Rs. 50,000 That order was made even before notice was issued to the respondent. Consequently, the learned Judge held that the order was not valid as it did not satisfy the provisions of Order 38, Rule 5, Code of Civil Procedure. Neither the decision of Ratnam, J. nor that of Sathiadev, J. would apply to the facts of this case. The facts in those two cases have no resemblance to the facts of the present case.
10. Learned Counsel for the appellant produced a notice said to have been served on him for the hearing of the attachment application. The notice produced before me is only a notice of hearing on 11.12.1987 and warned the appellant that if the he remained absent on the date of hearing an order would be passed against him ex-parte. The notice called upon him to state his objections to the prayer of the respondent. The appellant has not produced the order of interim conditional attachment served on him. Neither before the Court below nor in the Memorandum of appeal the appellant raised any objection as to the form of notice even though he had dragged on the application for nearly four months in the Court below. On the other hand, the appellant has raised a false plea both in the memorandum of appeal and in the affidavit filed in C.M.P. No. 5692 of 1988 in this Court that the matter came up before the lower Court for first time on 4.3.1988 for filing counter. The appellant is not entitled to put forward any plea that the notice served on him in the matter was defective in form even assuming it was so.
11. On the facts of this case, I am convinced that the appellant is only protracting the proceedings and is not keen on contesting the application for attachment. The Court below is justified in making the order of attachment absolute. In the result, the appeal fails and is dismissed with costs.