Court should vacate order of attachment.

The revision is directed against the order of the learned subordinate judge at Villupuram in I.A.No.172 of 1997 in O.S.No.665 of 1994 dated 30.4.1997.

2. An interim attachment was made as against the petitioner defendant as against the dues accumulated in his account with the Chengalvarayan Co-operative Sugar Mills, Periasevalai and the attachment has been made for Rs.40,908 petition in I.A.No.172 of 1997 was filed by the defendant under O.38, Rule 9, C.P.C. praying for the raising of the attachment on the ground that he has borrowed money for the performance of the marriage of his daughter and he has been depending only on the income from cultivation of cane and that in order to celebrate the marriage of bis daughter without any hindrance and hardship, he wanted to withdraw the amount from the Chengalvarayan Co-operative Sugar Mills. He has further stated that he has got lot of landed properties and that he was providing immovable security so as to cover the amount due under the suit.

3. Neither sufficiency nor the genuineness of the immovable property shown as security by the defendant has been doubted by the learned trial judge, but the said application has been rejected only on the ground that the plaintiff would be put to irreparable loss and hardship, if he is required to realise the amount from immovable security. Except, this, no other reason has been given by the learned trial judge to reject the application which was thus filed under 0.38, Rule 9, C.P.C.

4. A perusal of the said provision shows that the court shall order the attachment to be withdrawn when the defendant furnishes the security required together with security for the costs of the attachment when the suit is dismissed. As stated earlier, when neither the sufficiency of the security nor the genuineness of the security is doubted. In the said circumstances, the relief sought for under 0.38, Rule 9, Civil Procedure Code is mandatory and the court is bound to pass a consequential order. Learned counsel for the petitioner also relies upon the judgment reported in N.R.Thirnvengadam v. Kaliannan, A.I.R. 1984 Mad. 112, Ratnam, J. (as he then was) held that the remedy provided for under 0.38, Rule 9, C.P.C. is in the nature of an independent remedy and can be availed of by a defendant eyes after an order for attachment under Sub-rule (1) of Rule 6 of 0.38 has been made. The provision was a beneficial one intended to give an opportunity to defendants who despite an order of attachment passed against them are in a position to offer security for safeguarding the claims of plaintiff made in the suit and to pray for a withdrawal of the order of attachment made already either over their other assets or moneys. As already stated, the petitioner has also pleaded that he was in need of money, (which was already attached) for celebrating the marriage of his daughter and the said reason is not considered before passing the order.

5. The respondent remained absent even after service of notice and there is no representation on his behalf. Having regard to the circumstances stated above the revision petition is allowed. No costs. Consequently no order is necessary in C.M.P.No.9093 of 1997.