The Court's decision emphasized the principle that in an application for attachment before judgment, the Court needs to form a prima facie opinion to secure the plaintiff's interest, and the defendant's failure to furnish security within the specified time can lead to attachment warrants.

ORDER:

This Civil Revision Petition is filed under Article 227 of the Constitution of India by the petitioner-defendant assailing the order dated 23.03.2022 in IA No.114 of 2022 in OS No.18 of 2022 on the file of the learned Principal Junior Civil Judge, Mancherial.

2. The application in IA No.114 of 2022 was filed under Order-38 Rule-5 of the Civil Procedure Code, 1908 (for short ‘CPC’) for attachment before judgment of the suit schedule property as a security towards the suit claim of Rs.45,14,340/-. This application is filed along with original suit in OS No.18 of 2022 for recovery of the said amount. In the original suit, the sole defendant has filed a written statement denying the liability and during enquiry in IA No.114 of 2022, the learned Principal Junior Civil Judge has ordered conditional attachment directing the defendant therein to furnish security equivalent to the suit amount within three days of service of notice, failing which the attachment warrants will be issued for attachment of chit amount to be paid by the respondent.

3. Heard the learned counsel on both sides. The submissions made on either side have received due consideration of this Court.

4. For the sake of convenience, the parties are hereinafter are referred to as the plaintiff and defendant as arrayed in the original suit in OS No.18 of 2022.

5. The plaintiff has filed the original suit against the defendant for recovery of Rs.45,14,340/- alleging that the plaintiff and defendant are real brothers and the defendant in order to establish turmeric business requested the plaintiff for hand loans. Accordingly, the plaintiff has advanced loan over a period of time from 30.01.2018 to 27.04.2018 and again from 21.06.2018 to 28.12.2018. Thus, in all the defendant has received an amount of Rs.36,51,446/- till 24.04.2019. On the demand made by the plaintiff, only an amount of Rs.10,62,375/-was repaid and failed to pay the balance amount. Hence, the suit is filed for recovery of Rs.45,14,340/-.

6. Along with the original suit, the IA No.114 of 2022 is filed under Order-38, Rule-5 of CPC. As per the orders dated 25.03.2022, upon hearing the learned counsel on both sides, the orders were passed. However, the contention of the learned counsel for the revision petitioner /defendant is that the trial Court failed to see that the plaintiff failed to file any document in support of his claim for the principal amount or interest. Though the parties are real brothers, there are several transactions in respect of joint family properties. The powers under Order-38 Rule 5 of CPC are drastic and extra-ordinary in nature. No prima facie case is made out by the plaintiff.

7. The learned counsel for the revision petitioner/ defendant has relied on the orders of this Court in batch of CRP Nos.1066, 642, 683 and 1058 of 2021 dated 28.03.2022 wherein this Court while relying on the principles laid by the Hon’ble Apex Court in M/s. Raman Tech & Press Engg. Co., Vs. Solanki Traders, (2008) 2 SCC 302 and in Mandala Suryanarayana, @ Babji Vs. Sri Barla Babu Rao, s/o. Appa Rao, 2010 (2) ALT 839 wherein a Division Bench of this Court while relying on the judgment of the Apex Court in Raman Tech’s case (1st supra) set aside the orders passed by the trial Court and remanded the matter for fresh consideration in accordance with the principles laid by the Hon’ble Apex Court in the above decision.

8. Per contra, the learned counsel for the respondent/plaintiff relied on the principle laid by the Supreme Court in Rajendran and Others Vs. Shankar Sundaram and Others, AIR 2008 SC 1170 wherein it was held that in an application for attachment before judgment what is required is only the Court has to form prima facie opinion and the plaintiff is entitled to secure his interest. In such circumstances, the defendant/appellant is not seriously prejudiced when a direction for depositing security is ordered, accordingly held that the learned Judge is not correct in rejecting the application as if the plai