Heard Sri K.Maheswara Rao, counsel representing appellant and Sri K.Mohan, counsel representing the respondent.

2. The plaintiff filed O.S.No.229 of 2006 on the file of the Court of III-Additional Senior Civil Judge, City Civil Court, Secunderabad, for refund of advance amount said to be due under an agreement of sale as against the appellant herein, who is the defendant in the said suit and he also moved an application in I.A.No.673 of 2006 in O.S.No.229 of 2006 on the file of III-Additional Senior Civil Judge, Secunderabad, under Order-38, Rule 5 and 6 read with Section 151 of the Code of Civil Procedure, (hereinafter referred to as Code for the purpose of convenience) praying for a direction to furnish security of Rs.7,50,000/for the value of the suit, failing which to attach Flat No.508 and 307 in survey no.106 situated at Balreddynagar, Chintal Balanagar Mandal, Ranga Reddy district. The said application was resisted by the appellant that the learned Judge recorded certain reasons and ultimately allowed the said application ordering attachment of the property in question before judgment. Aggrieved by the same, the present Civil Miscellaneous Appeal is filed.

3. Sri Maheswara Rao, the learned counsel representing the appellant had taken this court through the reasons which had been recorded at para 6 and 7 of the impugned order and would maintain that none of the essential ingredients are satisfied while ordering attachment before judgment as discussed by the learned Judge and hence the impugned order cannot be sustained. The learned counsel also placed reliance on certain decisions.

4. Per Contra, Sri K.Mohan, the learned counsel representing the respondent would maintain that this is a suit for refund of the advance amount due on the strength of an agreement of sale and the said agreement of sale in question is not in controversy at all. The stand taken by the other side is that payment was already made but the agreement was not returned. The learned counsel would also maintain that the appellant is not having any other proper security and he is likely to leave the jurisdiction of the court with a view to defeat the fruits of decree, which is likely to be passed, this aspect had not been seriously controverted and in view of the same, the impugned order does not suffer from any legal infirmity whatsoever.

5. As already specified supra, the present Civil Miscellaneous Appeal is filed by the respondent-defendant in I.A.No.673 of 2006 in O.S.No.229 of 2006 on the file of III-Additional Senior Civil Judge, City Civil Court, Secunderabad. The respondent herein as plaintiff filed the said application praying for attachment before judgment. The suit is for recovery of earnest money paid on the date of agreement of sale dated 28-8-2003 and it is stated that the appellant herein agreed to sell flat no.508 and 307 for a price of Rs.5,68,800/- and failed to perform his part of the contract and hence he is entitled to recover the said advance amount. It is also stated that the defendant is trying to evade the payment and trying to alienate with a view to defraud him.

6. A counter in elaboration had been filed but however as can be seen from the averments made in the counter, the merits and demerits, which may have to be gone into at the time of trial had been highlighted. The agreement of sale in question is not in serious dispute. The stand taken by him is that though refund of the entire amount was made and inasmuch as in good faith, the return of agreement of sale was not insisted upon the respondent-plaintiff is taking advantage of the same.

7. Whatever may be the stand taken by the respective parties in the application as well as in the counter, the learned Judge recorded certain reasons in para nos. 6 and 7 and the submissions at. length were made by both the counsel, the learned counsel representing the appellant stating that these reasons recorded may not be sufficient in the facts and circumstances of the case and