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IN THE HIGH COURT OF ANDHRA PRADESH AT AMARAVATI
RAVI NATH TILHARI, CHALLA GUNARANJAN
Mohammed Vasee – Appellant
Versus
Alakananda Townships Pvt. Ltd., Rep.by its M.D. Vasupalli Rajashekar Visakhapatnam – Respondent
JUDGMENT :
Ravi Nath Tilhari, J.
Heard Sri M. R. S. Srinivas, learned counsel for the Appellant and Sri V. V. Saketh Roy, learned senior counsel for the Respondent.
2. The present appeal under Order 43 Rule 1 of Code of Civil Procedure (CPC) has been filed by the appellant/defendant in Commercial Original Suit (in short ‘COS’) No.14 of 2023, pending in the Court of the Special Judge for trail and disposal of Commercial Disputes, Visakhapatnam (in short ‘Special Court’), being aggrieved from the Order dated 09.08.2024 passed in I.A.No.458 of 2023, whereby inter alia the attachment of the petition schedule land effected vide earlier Order dated 10.11.2023 in the said COS has been made absolute, also granting liberty to the defendant to seek modification of the attachment according to law, and providing that, which, if sought would be decided on its own merits.
I. FACTS :
i) Plaintiff’s case:
3. The COS was filed by the plaintiff/respondent for recovery of amount of Rs.3,19,75,543/- (Rupees three crore nineteen lakh seventy five thousand five hundred and forty three only) said to be due and payable by the defendant on the strength of a Memorandum of Understanding (in short ‘MOU’) dated 05.1
A plaintiff must establish a prima facie case for attachment before judgment, ensuring no asset disposal occurs that could obstruct potential recovery, as underscored by Order 38 Rules 5 and 6 of CPC....
It is settled law that power under Order 38 Rule 5 of CPC is drastic and extraordinary power.
Satisfaction of the Court is a pre-requisite for grant of conditional attachment under Order XXXVIII, Rule 5 of CPC. Failure to comply with the requirements of Order XXXVIII, Rule 5 of CPC renders th....
The court emphasized that attachment before judgment requires credible evidence of intent to obstruct execution, and failure to consider relevant documents constitutes a jurisdictional error.
A claim under Order 38 Rule 10 of C.P.C is maintainable after the suit is decreed, and the attachment before judgment continues after the decree, adjudicable under Order 21 Rule 58 of C.P.C.
Point of Law : If the court omits to give such a direction regarding continuance, attachment shall be deemed to have ceased.
Rule 11-A of Order XXXVIII, which was inserted by Amendment Act 104 of 1976, says that provisions applicable to an attachment made in execution of decree.
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