CMA No. 1461 / 2023

IN THE HIGH COURT OF JUDICATURE AT MADRAS

RESERVED ON : 27.07.2023

PRONOUNCED ON : 03.08.2023

CORAM :

THE HONOURABLE MR. JUSTICE SUNDER MOHAN

Civil Miscellaneous Appeal No. 1461 of 2023

and

C.M.P. No. 15007 of 2023

S.Rajasekar

... Appellant

Versus

C.Sakthivel Raajhaa

... Respondent

PRAYER : Civil Miscellaneous Appeal filed under Order 43 Rule 1(t) of

the Civil Procedure Code seeking to set aside the fair and decreetal order

dated 08.06.2023 made in I.A. No. 3 of 2022 in O.S. No. 120 of 2022 on

the file of the II Additional District Court, Tiruchengode by allowing this

Civil Miscellaneous Appeal.

For Appellant : Mr. N. Manoharan.

For Respondent : Mr. M. Santhanaraman.

J U D G M E N T

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.

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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.

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CMA No. 1461 / 2023

(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.

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CMA No. 1461 / 2023

(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 p