Vandana Cylinders (P) Ltd. vs State Bank of India

Immaneni Panduranga Rao, J.—This revision is directed against the warrant of attachment before Judgment issued by the learned Principal Subordinate Judge Ranga Reddy District in I.A.No. 1820 of 1991. The said warrant of attachment before judgment can only be in pursuance of an order passed by the learned Principal Subordinate Judge, Ranga Reddy District in I.A.No. 1820 of 1991 but the order of the learned Subordinate Judge is not filed by the petitioner.

The learned counsel for the petitioner vehemently argued that the affidavit filed by the Branch Manager of the respondent-Bank does not disclose the source of his information for swearing to the facts mentioned in the affidavit and as such the learned Principal Subordinate Judge committed a grave error in relying upon the allegations in the said affidavit and granting relief to the respondent by way of attachment before judgment. In support of his contention, the learned counsel for the revision petitioner relied upon the observations of the Supreme Court in Sukhwinder Pal Bipan Kumar and Others Vs. State of Punjab and Others, wherein it is held that under Order XIX, Rule 3 of the Code of Civil Procedure, it is incumbent on the depondent to disclose the nature and source of his knowledge with sufficient particularity. Since the allegations in the petition are not supported by an affidavit as required by law the learned Judges have held that the allegations in the writ petition are not sufficient to constitute an averment of mala fides so as to vitiate the impugned orders of suspension. The learned counsel for the petitioner also placed reliance upon a Division Bench decision of Allahabad High Court in Har Krishan Khosla Vs. Alembic Chemical Works Company Ltd. and Another, , wherein it is held that where the plaintiff had filed ''an application for attachment before judgment and in support of that application an affidavit to the effect that the defendant was about to dispose of the property in order to delay or obstruct execution of a decree was sworn on the basis of information but the source of information was not disclosed in the affidavit the affidavit could not be read in evidence and the application could not be allowed on such an affidavit. The Division Bench held that the deponent had to state the name and address and sufficiently describe the identity of the person or persons from whom he received such an information.

With regard to the scope of Order XXXVIII, Rule 5 of the CPC the learned counsel for the petitioner relied upon the decision of a Division Bench of our High Court in V. Vijayalakshmamma v. S. Lakshmaiah & Sons AIR 1980 AP 176 holding that Before an order of attachment before judgment is made the court must satisfy itself that the defendant is about to dispose of or remove the whole or part of his property and that that satisfaction must be derived from some material on record either by way of affidavit or otherwise but cannot be whimsical nor can it be illusory.

The learned counsel for the respondent submitted that the civil revision petition itself is not maintainable against an interlocutory order. The learned counsel submitted that basing on the allegations made in the affidavit that the respondent (revision petitioner) is likely to remove the machinery and other movables the details of which are furnished in the petition and thereby cause loss to the plaintiff the learned Subordinate Judge has passed an order of interim attachment and that without moving the same court for vacating the order of interim attachment the defendant (revision petitioner) is not entitled to approach this court by way of revision.

Section 115 of the Code of Civil Procedure, which is amended in 1976, has limited the scope of revision to the High Court. Under the said amended provision two conditions mentioned in the proviso should exist viz., (i) the order if it had been made in favour of the party applying for revision would have finally disposed on the suit or other proceeding, or (ii) the order if allowed to stand would occasion a failure of justice or cause irreparable injury to the party against whom it was made. There is no doubt that by virtue of the amended provision, the Legislature intended to restrict the revisional jurisdiction of this court u/s 115 of the Code of Civil Procedure. In this case the order of attachment before judgment passed by the learned Principal Subordinate Judge is only an interim order and the same court has the right either to vacate the interim order after the petitioner herein files its counter of to make the interim order absolute. Inasmuch as the order basing on which the warrant of attachment is issued, is not a final order I hold that the revision is not maintainable.

However the learned counsel for the respondent submitted that the suit is for recovery of money of Rs. 1,21,29,604-67; that the property offered as security is not sufficient; that while admitting the revision this court has directed the petitioner herein to give third party immovable property security for half of the suit claim to the satisfaction of the lower court and that it would meet the ends of justice if the Managing Director of the petitioner''s company is directed not to alienate the machinery mentioned in the schedule attached to I.A.No. 1820 of 1991 pending disposal of the suit. The learned counsel for the petitioner stated across the bar that the Managing Director of the petitioner''s company has no objection to give such an undertaking because he has no intention of alienating the machinery pending disposal of the suit but he is only challenging the correctness of the order passed by the learned Principal Subordinate Judge. In the light of these submissions made by the learned counsel for the petitioner and the respondent without standing on technicality about the non-maintainability of the revision and in order to shorten the litigation before the lower court I direct the Managing Director of the petitioner to file an undertaking before the learned principal Subordinate Judge Ranga Reddy District within two weeks from today that he will not alienate the machinery the details of which are set out in detail in the schedule filed in I.A. No. 1820 of 1991. On such undertaking being filed and the petitioner furnishing third party immovable property security as per the direction given by this court on 8-1-1992 in C.M.P. No. 63 of 92 the learned Subordinate Judge shall raise the interim order of attachment.

Subject to the above directions the civil revision petition is disposed of. No costs.