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2013 Supreme(Mad) 2391
HIGH COURT OF JUDICATURE AT MADRAS
K. RAVICHANDRABAABU, J.
E.S. Mohideen
Versus
Margadarsi Chits Pvt. Ltd., Chennai & Others
C.R.P. (NPD) No. 1505 of 2012 & M.P.No. 1 of 2012
Decided on : 12-07-2013
For the Petitioner:T. Mathi, Advocate.
For the Respondents:R1, D. Shivakumaran, Advocate, R6, No Appearance.
A surety cannot challenge an order of attachment without first going before the Executing Court to set aside the exparte order.
Headnote:
Attachment - Surety - The court found that the petitioner, as a surety, cannot challenge the order of attachment made by the Executing Court without first going before the Executing Court to set aside the exparte order. Therefore, the civil revision petition was deemed not maintainable and dismissed.
Fact of the Case:
The petitioner, as a surety, challenged the order of attachment made by the Executing Court without first going before the Executing Court to set aside the exparte order.
Finding of the Court:
The court found that the petitioner's challenge was not maintainable and dismissed the civil revision petition, directing the petitioner to pursue the application to set aside the exparte order before the Executing Court.
Issues: Challenge to order of attachment by surety, maintainability of civil revision petition without first going before the Executing Court.
Ratio Decidendi: A surety cannot challenge an order of attachment without first going before the Executing Court to set aside the exparte order.
Final Decision: The civil revision petition was dismissed, and the petitioner was directed to pursue the application to set aside the exparte order before the Executing Court.
1. The petitioner is the sixth judgment debtor and the sixth respondent in E.P.No.1416 of 2009 in A.R.C.No.1931 of 2007. The petitioner has challenged the order made in the E.P. dated 07.07.2010 whereby an order of attachment was passed by the Executing Court. The grievance of the petitioner is that he is only a surety and therefore, the court below ought to have proceeded against the principal debtor.
2. Heard the learned counsel appearing for the petitioner as well as the respondents.
3. A Perusal of the order passed by the court below dated 07.07.2010 in the said execution proceedings shows that the petitioner was called absent and there was no representation on his behalf and therefore, he was set exparte and consequently, an order of attachment came to be passed. W hen that is the factual position, I failed to understand as to how the petitioner can come before this court straight away by filing the civil revision petition without going before the Executing Court and filing a petition to set aside the exparte order passed on 07.07.2010. Therefore, I find that this civil revision petition is not maintainable and consequently, the same is dismissed.
4. Learned counsel appearing for the petitioner submits that already a petition to set aside has been filed before the Executing Court and the same is pending. If that is the position, it is for the petitioner to pursue the said application and seek appropriate relief from the court below.
5. With the above observation, the civil revision petition is dismissed. No costs. The connected miscellaneous petition is also dismissed.
