ORDER:

Defendant in the suit filed the present civil revision petition under Article 227 of the Constitution of India aggrieved by docket order, dated 18.05.2022 in I.A.No.404 of 2022 in O.S.No.167 of 2020 on the file of learned Principal Junior Civil Judge, Ramachandrapuram, East Godavari District.

2. Respondent/plaintiff filed O.S.No.167 of 2020 for recovery of amount basing on promissory note.

3. Petitioner/defendant filed written statement and is contesting the suit.

4. Pending the suit, plaintiff filed I.A.No.404 of 2022 under Order XXXVIII Rule 5 of CPC seeking attachment of petition schedule property.

5. In the affidavit filed in support of the petition, it was contended inter alia that petitioner/defendant borrowed an amount of Rs.6,00,000/- on 06.05.2018 for family expenses and to discharge sundry debts; that petitioner/defendant executed promissory note agreeing to repay the same with interest at 24% per annum; that the respondent/plaintiff came to know that the petitioner/defendant was indebted to so many people and that she is trying to alienate the petition schedule property to third parties. Hence, respondent/plaintiff filed present application seeking a direction to the petitioner/defendant to furnish third party security to the suit amount of Rs.9,58,000/- with subsequent interest and costs within stipulated time failing which order of conditional attachment of the petition schedule properties before judgment be passed, till the realization of the suit amount.

6. The said application was filed on 18.05.2022. Notice was served on the other side counsel on the same day. Learned counsel for the petitioner/defendant made an endorsement, on the petition, seeking time to file counter. However, on the same day the Court below passed docket order, which reads thus:

“Moreover, if this Court issued this attachment before judgment order, it will not cause any damage to either parties as the Respondent has right to challenge the pronote which was stated by the petitioner/plaintiff and may disprove the case of the petitioner/plaintiff.

Hence, this Court feels that, it is a fit case to issue attachment before judgment to the petition schedule property of respondent/defendant.

By considering the circumstances, considering the apprehension of the petitioner issue attachment of the petition schedule property through Court on payment of process and for filing counter of respondent call on 15.06.2022.”

7. Aggrieved by the above order, the present revision is filed.

8. Heard both sides.

9. Learned counsel for the petitioner would contend that trial Court did not follow the procedure contemplated under Order XXXVIII Rule 5(1) of CPC and hence, order of attachment is void under Order XXXVIII Rule 5(4) of CPC. He relied upon the decision reported in Raman Tech & Process Engg. Co. and Another v. Solanki Traders1.

10. Learned counsel for the respondent, on the other hand, would contend that since the petitioner/defendant is trying to alienate the property, application is filed seeking attachment of the petition schedule property along with third party affidavits. The trial Court has rightly ordered attachment on 18.05.2022 and the attachment was effected on 15.06.2022. Learned counsel for the respondent would further contend that against the order, civil miscellaneous appeal would lie under Order XLIII but not revision under Article 227 of the Constitution of India.

11. In the light of the arguments, the point that arises for consideration is whether the trial Court has followed the procedure contemplated under Order XXXVIII Rule 5(1) of CPC while passing the order, dated 18.05.2022?

12. Order XXXVIII Rule 5 of CPC reads thus:

“5. Where defendant may be called upon to furnish security for production of property:-

(1) Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent

1 2008 (2) SCC 302

to obstruct or delay the execution of any decree that may be passed against him, -

(a) is about to dispose o