Order 38 Rule 5 C.P.C. = Normal rule should be to issue notice to the defendant requiring him to explain as to why he be not required to furnish security or suffer an order of attachment before judgment.- but not direct to furnish with in time - any order directly directing to furnish security is liable to be set aside = PETITIONER RESPONDENT PARISAPOGU YOBU & SMT. PARISAPOGU VS M.VENKATESHWAR REDDY = Published in http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CMA&mno=418&year=2013
Order 38 Rule 5 C.P.C. = Normal rule should be to issue notice to the defendant requiring him to explain as to why he be not required to furnish security or suffer an order of attachment before judgment.- but not direct to furnish with in time - any order directly directing to furnish security is liable to be set aside =
The respondents have also filed I.A.No.891 of 2013 under Order 38 Rule 5 C.P.C. with a prayer to direct attachment of the schedule property before judgment. The trial Court passed an ex parte ad interim order on 26.04.2013 requiring the petitioner to furnish security for a sum of Rs.15,00,000/- within 48 hours and that if he fails to do so, the attachment shall come into existence. The said order is challenged in this appeal. =
It is no doubt true that it is competent for a civil Court to pass an ex parte ad interim order directing attachment before judgment, if the facts and circumstances warrant. Normal rule should be to issue notice to the defendant requiring him to explain as to why he be not required to furnish security or suffer an order of attachment before judgment. The order passed by the trial Court virtually proceeds on the assumption that the appellant is under obligation to furnish security. The finding in this regard needs to be arrived at after hearing the parties.
Hence, the appeal is allowed and the order under appeal is set aside.
| CMA 418 / 2013 | CMASR 19174 / 2013 |
|
THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON’BLE SRI JUSTICE S.V. BHATT
C.M.A. No.418 of 2013
JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)
The respondent filed O.S.No.532 of 2013 in the Court of the Special Judge for Trial of SC & ST (POA) Act, Ranga Reddy District at L.B.Nagar against the appellants for recovery of a sum of Rs.15,00,000/-. The amount is referable to a transaction of sale of land between the parties. The respondents have also filed I.A.No.891 of 2013 under Order 38 Rule 5 C.P.C. with a prayer to direct attachment of the schedule property before judgment. The trial Court passed an ex parte ad interim order on 26.04.2013 requiring the petitioner to furnish security for a sum of Rs.15,00,000/- within 48 hours and that if he fails to do so, the attachment shall come into existence. The said order is challenged in this appeal.
Heard Sri S.Ramachandra Prasad, learned counsel for the appellants and Sri G.Ramachandra Rao, learned counsel for the respondent.
It is no doubt true that it is competent for a civil Court to pass an ex parte ad interim order directing attachment before judgment, if the facts and circumstances warrant. Normal rule should be to issue notice to the defendant requiring him to explain as to why he be not required to furnish security or suffer an order of attachment before judgment. The order passed by the trial Court virtually proceeds on the assumption that the appellant is under obligation to furnish security. The finding in this regard needs to be arrived at after hearing the parties.
Hence, the appeal is allowed and the order under appeal is set aside. The trial Court shall pass orders in I.A.No.891 of 2013 after hearing both the parties. The appellant has undertaken before this Court not to sell the property and the same shall remain in force till the I.A. is disposed of. There shall be no order as to costs.
The miscellaneous petitions filed in this appeal shall also stand disposed of.
______________________
L. NARASIMHA REDDY,J
______________________
S.V. BHATT,J
Dt:02.08.2013
kdl
Comments
Post a Comment