N. Kailasam vs K. Rajesh

Aruna Jagadeesan, J.—This Civil Revision Petition is filed by the petitioner (party in person), who is the 2nd defendant in the suit to revoke

the order of attachment dated 3.6.2008 made in IA. No. 248/2009 in OS. No. 48/2009 on the file of the Additional District Judge, Trichirappalli.

The respondent/plaintiff, who is the son of the petitioner/the 2nd defendant, has filed the above said suit for partition against the petitioner and his

daughter. Pending the suit, the respondent has filed an application in IA. No. 248/2009 for passing an order of attachment of a sum of Rs.

30,87,333/- in the hands of the garnishee/Bank in the name of the petitioner by way of deposit in the Savings Bank Account No. 152248 till the

disposal of the suit. In the affidavit filed in support of the said application, it is averred by the respondent that the petitioner had received the sale

consideration of three sales executed by him on behalf of the family members and thus in possession of the joint family funds to the tune of Rs.

92,62,000/- and as a co-owner, he is entitled to Rs. 30,87,333/- in the joint family funds deposited by the petitioner in the Srirangam Branch of

City Union Bank. He has sought for attachment before judgement on the ground that the petitioner is likely to withdraw the entire amount in order

to defeat the claim of the respondent.

The court below has passed a docket order, directing the City Union Bank not to disburse the amount till 24.4.2009 and directed the petitioner

to comply with Order 39 Rule 3 of CPC. Pursuant to the said order, notice has been ordered to the petitioner and the same has been served on

him. On such service, the petitioner had appeared in party in person before the court below and has filed a memo pointing out the error committed

by the learned Judge in not complying with the provisions of Order 38 Rule 5(1) of CPC before passing the impugned order and subsequently had

filed a counter, reiterating the same, but the court below has extended the interim order till 3.6.2009, ignoring the submissions made by the

petitioner.

The petitioner party in person would contend that no notice was served on him and the impugned order has been passed exparte and such an

order of attachment is void, as it has been passed without complying with the provisions under Order 38 Rule 5(1) of CPC. He had placed

reliance on the judgement of this court rendered in the case of SPIC Ltd. by Managing Director and two Ors. v. S. Rathish Kanna 2004-1-LW-

398, which has arisen on identical facts and circumstances. The learned Single Judge of this court has held that the order of attachment made

straightaway attaching the property without complying with the provisions of Sub-rule (1) of Rule 5 of Order 38 of CPC is undoubtedly arbitrary,

unreasonable, illegal and it becomes liable to be dismissed in limine and thus had allowed the revision.

Ms. N. Krishnaveni, the learned Counsel for the respondent would support the order passed by the court below on the ground that it is not an

order of attachment, but only an interim direction not to disburse the amount lying in the Bank in order to protect the interest of the respondent who

is entitled to the said amount towards his share and therefore, non compliance of the provisions under Order 38 Rule 5(1) of CPC is of no effect

and does not vitiate the impugned order. The learned Counsel drew the attention of this court to the observations made by the Honourable

Supreme Court rendered in the case of Rajendran and Others Vs. Shankar Sundaram and Others, wherein it is held that the court while exercising

its jurisdiction under Order 38 Rule 5(1) of CPC is required to form a prima facie opinion at that stage and it need not go into the correctness or

otherwise of all the contentions raised by the parties. It has further observed that as the other party is directed to furnish security only, he may not

be seriously prejudiced.

The dictum made in the decisions cited supra is not applicable to the facts of this case, inasmuch as no notice was issued to the petitioner

directing him to furnish security or to show cause as to why security should not be furnished by him. In the case cited supra, the Division Bench of

the High Court directed the appellants to furnish security within the time specified thereon and in such a situation, the Honourable Supreme Court

has observed that the appellant was not prejudiced as he was only directed to furnish security and on his failure to do so, an order of attachment of

the property was directed to be passed.

It is true that in the application filed under Order 38 Rule 5 of CPC by the respondent, the court below has directed the garnishee not to

disburse the amount which is more or less an order of attachment, as the petitioner is restrained from dealing with the amount in any manner and

therefore, it cannot be considered as a mere direction. Even before passing such an order under Order 38 Rule 5 of CPC, a notice to the

petitioner to furnish security to the said amount is necessary. Order 38 Rule 5 of CPC clearly lays down that a court at the first instance must direct

the defendant to furnish security or to show cause why he should not furnish security and only after he failed to do so, conditional order of

attachment has to be made. The said proviso is mandatory and an order of attachment passed straightaway without complying with the provisions

under Order 38 Rule 5(1) of CPC would be void and the impugned order passed by the court below without complying with the said requirements

makes the order illegal and ultra vires and therefore, I am of the considered view that passing an order of direction in the nature of attachment

without notice to the petitioner cannot be considered as substantial compliance of the provisions of Order 38 Rule 5(1) of CPC.

In view of the reasons stated above, the impugned order is liable to be set aside and accordingly, it is set aside and this Civil Revision Petition is

allowed. No costs.