S. Rajeswaran, J.

1. This Appeal has been filed against the Order of the 1st Additional District Judge, Erode dated 7.11.2013 made in I.A. No. 116 of 2013 in O.S. No. 37 of 2013. The appellant is the defendant in O.S. No. 37 of 2013. The said O.S. No. 37 of 2013 has been filed by the respondent/sole plaintiff, for recovery of a sum of Rs. 2,87,31,923/- with subsequent interest at the rate of 24% p.a. from the date of Suit till the date of realisation of the Suit amount with cost.

2. For the sake of convenience, the parties herein are stated as per the ranking in the lower Court.

3. A written statement was filed by the appellant/defendant refuting the allegations made in the plaint. Pending suit, an application in I.A. No. 116 of 2013 was filed by the respondent/ plaintiff under Order 38 Rule 5 of Code of Civil Procedure (hereinafter called C.P.C.) for directing the defendant to furnish security to the satisfaction of the Decree amount, failing which to order attachment. The details of the properties are mentioned in the annexure. This petition was opposed by the defendant by filing a Counter. When the matter was posted for orders, an additional affidavit was filed by the plaintiff and on that basis, an Order was passed by the Trial Court on 7.11.2013, attaching the properties 3 to 5 and Item Nos. 7 and 8. Aggrieved over the same, the above appeal has been filed by the defendant.

4. We have heard the learned Counsel for the appellant/defendant and the learned Counsel for the respondent/plaintiff and we have also gone through the documents available on record.

5. The learned Counsel appearing for the appellant/defendant would primarily contend that the Order of Attachment cannot be granted for mere asking and it could only be granted, if it is really warranted. He adds that the respondent failed to aver and prove any such circumstance warranting grant of Order of Attachment. Moreover, the gamut of Order 38 Rule 5, C.P.C. has to be read strictly before applying the same for Order of Attachment. He further adds that when the case was heard on the First Application filed by him in I.A. No. 116 of 2013 for ordering Order of Attachment under Order 38 Rule 5, C.P.C. and the Order was reserved and posted for pronouncing Orders, the plaintiff filed an Application at that point of time, seeking to re-open the case and filed an Additional Affidavit, which was impermissible. However, the Court took it up and decided the case on the basis of the Additional Affidavit filed by the plaintiff. According to him, the lower Court failed to take note of the fact that the mandatory requirement of Order 38 Rule 5 of C.P.C. has not been satisfied by the plaintiff by filing an Application under Order 38 Rule 5, C.P.C. When in the Original Affidavit no averment has been made with regard to the ingredients of Order 38 Rule 5, C.P.C. filing an Additional Affidavit, at a later point of time, that too, when the case was posted for pronouncing Orders, after arguments were heard, for improving the case further and enabling the Court to pass an Order of Attachment under Order 38 Rule 5, C.P.C., is totally unsustainable. Further, he adds that even in the Additional Affidavit filed at a later point of time, nothing has been stated as required under Order 38 Rule 5, C.P.C. There-fore, when there is failure to comply with the mandatory requirement of Order 38 Rule 5, C.P.C. the Order passed by the Court below in passing an Order of Attachment under Order 38 Rule 5, C.P.C. is liable to be set aside in law and on facts.

6. In support of the above contentions, the learned Counsel for the appellant has relied on the following judgments:

(i) Pappammal vs. I. Chidambaram, AIR 1994 Mad. 70

(ii) Renox Commercials Ltd. vs. Inventa Technologies Pvt. Ltd. AIR 2000 Mad 213

(iii) M. Ravi vs. R. Vasanthakumari, (2002) 3 MLJ 679

(iv) Raman Tech. & Process Engg. Co. and Another vs. Solanki Traders, (2008) 2 SCC 302

(v) M.K. Hariprasad Sole Proprietor Yehem Agency and Vijaya H. Mar