C.R.P(MD).No.139 of 2021

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED : 23.03.2023

CORAM

THE HONOURABLE MR.JUSTICE C.SARAVANAN

C.R.P(MD).No.139 of 2021

and

C.M.P(MD).No.861 of 2021

P.Govindhasamy

... Petitioner/Respondent/Defendant

Vs.

V.Ramasamy

... Respondent/Petitioner/Plaintiff

PRAYER:- This Civil Revision Petition has been filed under Article 227 of

the Constitution of India, to call for the records of the learned District Court,

Karur, made in I.A.No.1 of 2020 in O.S.No.216 of 20202 and set aside the

fair and decretal order dated 14.12.2020.

For petitioner : Mr.S.Pon Senthilkumaran

For Respondent : No appearance

ORDER

There is no representation on behalf of the respondent/plaintiff.

2. The petitioner is the defendant in O.S.No.216 of 2020 on the file of

the District Court, Karur. The respondent has filed the above suit to recover

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C.R.P(MD).No.139 of 2021

a sum of Rs.19,17,750/-(Rupees Nineteen Lakh Seventeen Thousand Seven

Hundred and Fifty only) from the petitioner. In the said proceedings, the

respondent also filed an application under Order 38 Rule 5 of the Code of

Civil Procedure to attach the schedule mentioned property of the petition

before judgment.

3. Before the trial Court, it was specifically argued by the

petitioner/defendant that the schedule mentioned property have already been

mortgaged to IDBI Bank and TMB Bank. The petitioner/defendant further

contended that the order of attachment has been made without giving

sufficient opportunity to the defendant to furnish security within the time

fixed by the Court under Order 38 Rule 5(1) of the Code of Civil Procedure.

It is also submitted that unless the petitioner/defendant was called upon to

furnish security, the question of attaching the property would not arise.

4. The learned counsel for the petitioner therefore submits that the

matter may be remanded back to the lower Court to allow the petition to

furnish an alternate security. It is also submitted that the petitioner is willing

to furnish alternate security in the form of immovable property to secure the

interest of the respondent/plaintiff.

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C.R.P(MD).No.139 of 2021

5. The learned counsel for the petitioner has placed the follow reliance

for consideration:

(i) Raman Tech and Process Engg.Co.and Ors Vs., Solanki Traders

(ii) S.K.Kaleeswaren Vs., A.Gopalan and another

6. I have perused the impugned fair and decretal order dated

14.12.2020 in I.A.No.1 of 2020 in O.S.No.216 of 2020. The relevant portion

of the impugned order reads as follows:

“7....................He has merely denied the borrowal

and execution of the promissory note. It is also fact that he

has already mortgaged their property with IDBI and Tamil

Nadu Mercantile Bank. There is no specific denial or

specific case put forth by the respondent, and the petitioner

is having prima facie case in his favour. Further, the

petitioner has stated that the respondent is trying to alienate

the property. He has also filed a third party affidavit in

support of his contention. Considering all these aspects, in

order to protect the interest of the petitioner, attachment

order has to be passed. But, the property was already

encumbered by way of mortgage with two banks. So, the

present attachment will be subject to the earlier mortgage of

the property. “

7. Reading of the above indicates that the trial Court has not called

upon the petitioner to furnish the security before ordering attached of the

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C.R.P(MD).No.139 of 2021

property. Admittedly, property in question is mortgaged in favour of TMB

and IDBI for the loan borrowed by the petitioner/defendant. In these

circumstances, I am inclined to interfere by remitting the case back to the

trial Court to permit the petitioner to furnish any oth