ORDER: (Per Hon,ble VVSR,J)

1. This civil miscellaneous appeal under Order XLIII Rule 1(q) of Code of Civil Procedure, 1908 (CPC) is by defendant in O.S.No.73 of 2008 against the order dated 04.2.2009 whereby and whereunder the Court of I Additional District Judge, Rajahmundry, directed to issue warrant of attachment before judgment in I.A.No.1757 of 2008.

2. Respondent filed the suit for recovery of a sum of Rs.35,00,000/- from defendant, appellant herein. The suit was filed in September 2008 along with I.A.No.1757 of 2008 under Order XXXVIII Rules 5 and 6 of CPC for attachment of property of defendant before judgment. The trial Court ordered issue of notice on 22.1.2009 to appellant (hereafter, defendant). After receiving notice, he appeared through lawyer and sought time for filing counter. The counter was filed on 17.10.2008. Thereafter the matter was coming for enquiry. It was called on 22.10.2008, 30.10.2008, 05.11.2008, 21.11.2008, 05.12.2008 and on 31.12.2008. Every time, it appears that defendant appeared and sought time. Ultimately on 22.1.2009, trial Court ordered notice under Order XXXVIII Rule 5 of CPC directing defendant to furnish security by 5.30 pm on 04.2.2009. The defendant did not appear. On 04.2.2009, the trial Court directed to issue warrant of attachment, aggrieved by which the present appeal is filed.

3. Learned Counsel for appellant/defendant relies on Division Bench judgment of this Court in Y.Vijayalakshmamma v M/s.Sakinala Lakshmaiah and sons AIR 1980 AP 176 and a decision of apex Court in M/s.Raman Tech & Process Engg. Co., v M/s.Solanki Traders 2008(2) SCJ 381 and submits that the impugned order without applying mind and without giving reasons is unsustainable. He also submits that the appellant filed counter on 17.10.2008 itself giving undertaking not to alienate the property sought to be attached and, therefore, the trial Court ought not to have passed order under Order XXXVIII Rule 6 of CPC. Per contra, learned Counsel for respondent relies on another Division Bench decision of this Court in Bommanasaree Mandir v Manisha Sarees AIR 2002 AP 66 = 2001 (4) ALT 780 in support of the submission that trial Court after providing adequate opportunity passed order and, therefore, it does not warrant interference.

4. The question that requires consideration is whether a civil court is required to record reasons before ordering issue of warrant of attachment before judgment under Order XXXVIII Rule 6 of CPC, even in a case where defendant fails to comply with the order/notice issued by the Court under Order XXXVIII Rule 5 of CPC to furnish security within the time stipulated.

5. The order to attach any property before judgment is an important supplemental proceeding before a civil court. An order of attachment has significant consequences to defendant and that if he happens to be the owner, he would be at least temporarily deprived of the right to enjoy such property in true sense. An order of attachment before judgment always creates an encumbrance and clouds the title of defendant. It is for this reason Section 95 of CPC confers a right on defendant to apply to Court seeking reasonable compensation in the case of attachment, which is illegal and unwarranted. Therefore, while ordering attachment in accordance with Rules 5 and 6 of Order XXXVIII of CPC, the Court must always be conscious of serious consequences and repercussions that would result there from to both the parties especially the defendant.

6. The Rules 5 and 6 of Order XXXVIII of CPC are relevant for the purpose of this case, which read as under.

ORDER XXXVIII–ARREST AND ATTACHMENT BEFORE JUDGMENT

Rules 1 to 4 omitted.

5. Where defendant may be called upon to furnish security for production of property

(1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-

(a) is about to dispose of the whole or any p

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