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1992 Supreme(AP) 256

Andhra Pradesh High Court
Judges : V.NEELADRI RAO
Adduru Dasaratha Rami Reddy - Appellant
Versus
Vamireddy Vishnu (Minor) - Respondent
C.R.P.Nos.3987/91 etc.
Decided On : 04-20-92
Advocates Appeared :
M/s. M.R.K. Chowdary, M. Sadhana, Ch. Satish Kumar,M/s. M.P. Chandramouli, Katta Janardhan Rao

Headnote:CIVIL PROCEDURE CODE, Order 38, Rules 5 and 6 - Security - Meaning of Deposit in Court contemplated does not include money or property other than the property sought to be attached - Security contemplated includes personal security of 3rd parties also

       HELD: Neither Order 38, Rule 5 nor Order 38 Rule 6 CPC empowered the Court to direct the defendant to deposit in Court money or property other than the property sought to be attached Even in regard to the properties sought to be attached, the Court is merely empowered to direct the defendant to furnish security 10 produce the property or the value of the same when required The security referred to in Order 38, Rule 2 or Order 30 Rule 5 or Order 38 Rule 6 CPC is not qualified or modified

V. NEELADRI RAO, J.

( 1 ) ALL these revision petitions were heard together, as the same point is involved.

( 2 ) THE point which falls for consideration is as to what security has to be furnished under O. 38, R. 6 of C. P. C. The facts Which give rise to the above point are as under: The revision petitioners herein are the defendants in OS Nos. 270/91, 223/91, 219/91,221/91,225/91 and 227/91, Principal Sub Court, Tirupathi respectively. The plaintiffs-respondents in the respective suits filed petitions under O. 38, R. 5 of C. P. C. for attachment before judgment of the properties referred to in the petitions. The lower Court ordered the revision petitioners to furnish security for the suit amounts failing which the attachment should be effected. Then Smt. B. Pandmaja the sister of the second revision petitioner agreed to furnish security for the suit amounts in all these cases. It is submitted for the surety that she is having 1/4th undivided share in the building under the name and style of Jyothi Talkies and the total value of the said building, is Rupees 33,00,000/- even as per the market value certified by the Sub Registrar and thus her share is Rs. 8,00,000. 00 and odd. When these revision petitioners filed I. As. to accept the security furnished by Smt. B. Padmaja, the lower Court dismissed those petitions by observing as under:"the security furnished by the respondent in any view is not complying the said orders and the security that has furnished by the respondent is not acceptable as the surety is a third party security. As per the said orders the respondent has to furnish his self-security, not the security of the third party. Hence the petition is dismissed attaching the petition schedule property. "the above portion of the order is similar in all these cases. They are assailed in these revision petitions,

( 3 ) IT is convenient to extract O. 38, R. 6 of C. P. C. to consider the point and it is as under:"1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. 2) Where the defendant shows, such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawn, or make such other order as it think fit. "

( 4 ) IT is evident that O. 38, R. 6 of C. P. C. merely refers to security. It does not refer to the nature of security. It does not indicate that the said security should be immovable property security of the defendant or that he has to give bank guarantee. It does not indicate that it is not open to the defendant to furnish the third party personal security. In juxtaposition O. 38, R. 2 (1) of C. P. C. can be referred to and it reads as under:"1) Where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule. "

( 5 ) WHERE the defendant has absconded or about to abscond or left or about to leave the local limits of the jurisdiction of the Court or disposed of or removed his property or any part thereof from the local limits of the jurisdiction of the Court with a view to obstract or delay the execution of any decree that may be passed against him or is about to leave India under the circumstances reasonably indicating that the plaintiff will or may be obstructed or delayed in execution of any decree that may be passed against the defendant in the su





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