SupremeToday Landscape Ad
Back
Next
Judicial Analysis Court Copy Headnote Facts Arguments Court observation
Listen Article Pause Article
judgment-img

2008 Supreme(AP) 576

Andhra Pradesh High Court
THE HONOURABLE SRI JUSTICE P.S.NARAYANA
Vantaru Chinna Subba Rayudu — Appellant
Versus
Smt. Y. Lalitha Vani — Respondent
C.R.P. No.2063 of 2008
Decided on : 29-7-2008

Advocates appeared:
Counsel for the Petitioner: Sri R. Prabhakar representing Sri Venkatadri
Counsel for the Respondent: Sri Vasudeva Reddy representing Sri Ravinder Reddy

Headnote:Civil Procedure Code 1908 - Order 38 Rule 5:-It is improper for the court to direct furnishing security while ordering for notice in an application for attachment before judgment and fix a date without being satisfied of a prima facie case in favour of the plaintiff after hearing both sides Revision petition allowed and the case remanded for disposing of the application after hearing both sides

ORDER

The Civil Revision Petition is filed by the revision petitioner aggrieved by an order made in I.A.No.93/2008 in O.S.No.34/2008 on the file of the Vacation Civil Judge, City Civil Court, Hyderabad where under the petitioner was given notice with a further direction to furnish security for a sum of Rs.12,32,000/-within a period of seven days from the date of receipt of notice, to produce and place at the disposal of the Court when required the entire property mentioned in the schedule hereunder sufficient to satisfy the decree that may be passed in favour of the petitioner - plaintiff. The respondent herein - the plaintiff in the suit instituted the suit for recovery of money and also filed an applicationI.A.No.93/2008 in O.S.No.34/08 on the file of the Vacation Civil Judge, City Civil Court, Hyderabad under Order 38 Rule 5 of the Code of Civil Procedure praying for conditional attachment. The certified copy of the third party affidavit of B.V. Ramana Rao is placed before this Court and no doubt it is shown as O.S.No.274/2008 in the said third party affidavit. But, however, it is shown as in the Court of the Hon'ble Chief Judge, City Civil Court, Hyderabad.

2. This Court on 21-5-2008 while admitting the Civil Revision Petition, inC.R.P.M.P.No.2734/2008 made the following Order:- "Aggrieved by the order of conditional attachment before Judgment passed in I.A.No.93/2008 in O.S.No.34/2008 on the file of the Vacation Civil Judge, City Civil Court, Hyderabad dated 15-5-2008, the present revision is filed. Learned Counsel appearing on behalf of the petitioner would state that except a bare reproduction of the contents of Order 38 Rule 5 C.P.C. no third party affidavits or any other material have been placed before the Court to enable the Court to arrive at the satisfaction that the defendant was intending to remove the property from the local limits of the jurisdiction of the Court. The learned Counsel has also placed reliance on K. Mallesh Mudraj v. C. Sudhakar (2007)4) ALD 369) wherein this Court, while taking note of the fact that except the averments made in the affidavit filed in support of the application, no third party affidavits or any other material had been placed before the Court, held that it was not sufficient compliance with the requirements of Order 38 Rule 5 of C.P.C. and directed maintenance of status quo. Hence, status quo as on today shall be maintained for a period of four weeks. Learned Counsel for the petitioner is permitted to take out notice on the respondents by registered post with acknowledgment due and filed proof of service. Post on 11-6-2008."The interim order made by this Court is being extended from time to time. On 16-7-2008 this Court made the following order:-"This Court on 21-5-2008 had recorded the submission made by the Counsel for revision petitioner that no third party affidavits or any other material had been placed before this Court and despite the same, an order was made. Sri Vasudeva Reddy, representing Sri B. Ravinder Reddy, learned Counsel for the respondent, had placed the certified copy of the third party affidavit filed before the learned Chief Judge, City Civil Court, Hyderabad. Sri B. Venkatadri, learned Counsel for the petitioner, requests time to verify the same. List the matter on 21-7-2008."

3. Sri R. Prabhakar representing Sri Venkatadri, the learned Counsel representing revision petitioner, in all thoroughness had taken this Court through several factual controversies and also under what circumstances the promissory note in question dt.18-5-2005 came into existence and how the same cannot be enforced. Incidentally, the learned Counsel also would maintain that none of the ingredients of Order 38 Rule 5 of the Code of Civil Procedure had been satisfied. Further, the learned Counsel also had pointed out that for reasons best known, conveniently the Vacation Civil Judge, City Civil Court, Hyderabad had been chosen for instituting the suit though this Court has no jurisdiction a





Click Here to Read the rest of this document

1
2
3
4
5
6
7
8
9
10
11
SupremeToday Portrait Ad
supreme today icon
whatsapp-icon Back to top