The court clarified the power to modify attachment orders under Order 38 Rule 6(2) of the Code of Civil Procedure, 1908, asserting it does not constitute a review.

JUDGMENT

This original petition is filed by the petitioners challenging the order dated 05.10.2024 passed by the Additional Sub Judge, Kollam on IA No.3/2024 in OS No.60 of 2024.

2. Heard the learned counsel for the petitioners and the counsel for the respondent Nos.1 & 2. The respondent Nos.1 & 2 objected the petition.

3. The case of the petitioners before the trial Court is that the respondent Nos.1 & 2 herein filed an application under Order 38 Rule 5 of the Code of Civil Procedure, 1908 and obtained the order on IA No.1 of 2024 in OS No.60 of 2024 wherein, the trial Court attached the Item No.2 schedule property by lifting the attachment of item No.1 by order dated 24.07.2024. Subsequently, the defendants said to be the borrower moved an application I.A No.3 of 2024 for seeking modification of the order by filing application under Order 38 Rule 6 (2) of the for seeking modification, wherein, the trial Court dismissed the application by impugned order dated 05.10.2024. Hence, the petitioners are approached this Court.

4. The learned counsel for the petitioners has contended that the respondents obtained the order of attachment, the trial Court itself, lifted the attachment order as item No.1 which is a residential house and attached the item No.2 which is a factory and subsequently the petitioners filed an IA for modification of the order, where, the trial Court committed error in dismissing the application on the ground that the property was mortgaged with the bank and there is no error on the face of the record, which is not correct. Hence, prayed for modification of the order .

5. Per contra, learned counsel for the respondent Nos.1 & 2 supported the order of the trial Court and opposed the petition.

6. The learned counsel for the respondent No.3, the banker submits that all the three items of properties were mortgaged with the bank. Proceedings were already initiated before the Debt Recovery Tribunal and interest of the bank has been protected. The said submission of the learned counsel for the respondent No.3 is placed on record.

7. Having heard the arguments and perused the records.

8. The points that are arisen for the consideration as follows:-

i. Whether modifying the order under Order 38 Rule 6 (2) of the Code of Civil Procedure, 1908 amounts to a review of the order passed by the trial Court which call for any interference?

9. On a perusal of the records, it is an admitted fact that the petitioners said to be the borrowers and the respondent Nos.1 & 2 said to be the creditors from whom the petitioners borrowed loan. Respondent No.3 is the banker, already moved before the Debt Recovery Tribunal by filing OA No.703 of 2022 for recovery of more than 6 Crores of loan amount and also filed application for taking possession before the Magistrate Court under Section 14 of the SARFAESI Act, which is pending. However, all the three items of the properties were mortgaged with the bank. However, the order passed by the trial Court on the application filed by the respondents 1 & 2 under Order 38 Rule 5 of the Code of Civil Procedure, 1908 wherein, the trial Court lifted the attachment on the item No.1 which is a residential house by modifying the ad-interim order of attachment and attaches only the item No.2 schedule property and the petitioners are the borrowers have contended that a proposed purchaser is already came and intend to purchase the property item No.1 and the property it is modified and attached the item No.2 to the respondent Nos.1 & 2. The petitioners can sell it to the proposed purchaser and we can satisfying the award amount and even the item No.2 can sell it by the banker for realizing the amount for the purpose of selling the third item with the mortgage. there