JUDGMENT

The above appeal challenges the Order passed in I.A. No. 3 of 2022 in O.S. No. 120 of 2022 on the file of the II Additional District Court, Tiruchengode.

CMA No.1461/2023

2. The facts leading to the filing of the above appeal are as follows;

(i) The respondent herein filed a Suit based on a promissory note for recovery of a sum of Rs.24,73,000/- due to him by the appellant herein.

(ii) The respondent filed I.A. No.3 of 2022 under Order 38 Rule 5 and Section 151 of the C.P.C., for the attachment of a property belonging to the appellant. In the said petition, the respondent had stated that the appellant was due to pay the abovesaid amount; that the appellant was attempting to sell the said property; and that if the appellant alienates the property, the respondent would not be able to realise the amount due to him.

(iii) The appellant filed a counter statement denying the claim made by the respondent and stated that the respondent had misused a pro-note given as security at the time when the respondent and the appellant were dealing in a chit transaction; that the chit amount was settled and yet the respondent refused to return the pro-note; that the schedule mentioned property did not belong to the appellant and it was introduced to the partnership firm by the name ‘Ekdant Promoters & Developers’; and that he was ready to furnish security for the Suit claim.

(iv) The learned Judge had recorded the fact that the appellant had filed an affidavit of undertaking that he would not alienate or encumber the schedule mentioned property; that since the appellant had not furnished security as undertaken by him in the counter, the respondent’s claim for Order of attachment is justified and hence, allowed the application for attachment. Aggrieved by the said order, the instant appeal has been filed by the appellant.

3. Mr. N. Manoharan, learned counsel for the appellant, submitted that;

(a) An order under Order 38 Rule 5 of the C.P.C., cannot be passed attaching a property which is situated outside the jurisdiction of the Court. The learned counsel referred to Section 46 of the C.P.C., in support of his submission.

(b) The learned counsel further submitted that the power under Order 38 Rule 5 of the C.P.C., is drastic and extraordinary and such power should not be exercised mechanically. In the instant case, the learned Judge had mechanically passed an order based on bald allegations without determining whether a prima facie case is made out and whether there was any necessity to pass an order of attachment.

(c) The property sought to be attached is not an exclusive property of the appellant. The property was introduced into the partnership firm as capital per the partnership deed (Ex.R.2) dated 29.11.2021. Hence, the learned Judge was not right in attaching the said property.

(d) The learned counsel further submitted that the respondent had given an affidavit of undertaking not to alienate or encumber the property in any manner pending disposal of the Suit, and hence, there was no necessity to pass an order of attachment.

(e) The learned counsel relied upon the Judgment of this Court in M.K. Hariprasad Vs. Uma Keshav reported in 2009 5 LW 510; Judgment of this Court in M. Padmini Vs. M. Anandhan reported in (2014) 3 CTC 792; and Judgment of the Honourable Supreme Court in Raman Tech. & Process Engg. Co. Vs. Solanki Traders reported in (2008) 2 Supreme Court Cases 302; in support of his submissions.

4. (a) Mr. M. Santhanaraman, learned counsel for the respondent, per contra, submitted that the appellant, in his counter to the application filed by the respondent, had stated that he was ready to furnish security for the Suit claim. Hence, he was directed by the learned Judge as early as April 2022 to furnish security. The appellant was given nearly one year time to comply with his undertaking. However, since the appellant failed to do so, the impugned order came to be passed, and thus, there is no infirmity in the o