Samiyathal and Others vs N. Sampath

K. Ravichandrabaabu, J.—The petitioners are aggrieved against the order passed by the Court below in rejecting their application to raise

the order of attachment before judgment ordered in I.A. No. 482 of 1990 in O.S. No. 335 of 1990. The petitioners are the defendants in the said

suit seeking for recovery of money based on a promissory note. It is stated that an order of attachment before judgment came to be passed in I.A.

No. 482 of 1990 in respect of the subject matter of properties. It is also represented by the learned counsel for the petitioners that the suit has

been settled out of court and accordingly the same was also dismissed. He referred to a xerox copy of the register maintained by the Court below

indicating the above said fact. Therefore, the attachment made in I.A. No. 482 of 1990 has to be raised, is the contention of the petitioners. The

petitioners filed an affidavit in support of the said application before the Court below stating that the claim of the plaintiff was satisfied on

22.10.1991 itself and the suit register extract would also show that the matter has been settled between the parties out side the court. The Court

below has rejected the same only on the reason that the attachment cannot be raised after a very long period without perusal of the order passed in

I.A. No. 482 of 1990. Aggrieved against the same, the present Civil Revision Petition is filed.

Though notice was ordered to the respondent/plaintiff, and he was also served on 24.6.2013, he has not chosen to appear before this Court

either in person or through counsel. His name is printed in the cause list.

I heard the learned counsel for the petitioners and perused the materials placed before this Court.

The only reason given by the Court below for rejecting the application is that attachment cannot be raised after a very long period without

perusal of the order passed in I.A. No. 482 of 1990. On the other hand, the petitioners state that though an order of attachment came to be

passed in the said I.A., subsequently, the suit itself came to be dismissed as parties have settled the matter out side the Court. The said statement is

supported by the suit register extract indicating that the suit has been dismissed as settled out of court. When that being the contention of the

petitioners, supported by the suit register extract, I am of the view that the order of attachment should have been raised by the Court below. It is

also brought to the notice that the records pertaining to the application in I.A. No. 482 of 1990 were already destroyed. That is also evident from

the endorsement made by the Copyist Superintendent of the District Court, Erode in an application filed by the petitioner seeking for copy of the

order made in I.A. No. 482 of 1990. Even though the copy of the said order was not available, when the contention raised by the petitioners is not

disputed by the other side by filing any counter and when the petitioners have also produced other materials before the Court claiming that the suit

itself came to be dismissed as settled out of court, the Court below should have passed an order by raising the attachment. Even before this Court

the respondent has not chosen to appear and put forth his objections, if any. Therefore, it has to be construed that the statements made by the

petitioners in the affidavit filed in support of the application before the Court below are true. Considering all these facts and circumstances, I find

that the order passed by the Court below is unsustainable and accordingly the same is set aside. Consequently the application in I.A. No. 375 of

2012 in I.A. No. 482 of 1990 in O.S. No. 335 of 1990 is allowed. Accordingly, the Civil Revision Petition is allowed. No costs.