The court emphasized the need to protect claimant rights by preventing asset disposal during ongoing legal proceedings.

ORDER

The present Civil Revision Petition has been filed to set aside the Order and decree passed in IA.No. 1 of 2020 in OS.No. 263 of 2020 by the I Addl.

District Court, Coimbatore dated 08.02.2021.

2. Heard Dr.C.Ravichandran, learned counsel for the petitioner.

3. Despite of notice being served, as evidenced from the records, the respondent is neither present before this Court nor represented by a learned counsel. He is called absent and set exparte.

4.The learned counsel for the petitioner would submit that the petitioner had instituted a suit, seeking for recovery of a sum of Rs.23,80,466/- from the respondent together with interest. Even though the respondent had denied execution of the promissory note, he has not taken any steps to seek an expert opinion on the suit promissory note. The petitioner had also taken out an application, seeking a direction to the respondent to furnish adequate security to the satisfaction of the Court, failing which, the order of attachment of the schedule mentioned property in the said petition was sought for.

5. Notice was initially ordered with a direction to furnish security as directed by the Court. However, the application for attachment before judgment was dismissed by holding that the petitioner had failed to prove that there was an immediate threat of disposal of the property.

6. The learned counsel for the petitioner would submit that the said order came to be passed on 08.02.2021 without considering the apprehension of the petitioner or even calling upon the respondent to give an undertaking that he would not deal with the property pending the suit. He would submit that immediately after the dismissal of the said application, the respondent had surreptitiously transferred the property to a third party by a registered Sale Deed bearing Document No.23354 of 2022 dated 08.10.2022.

7. He would further submit that the said transaction is hit by Section 52 of the Transfer of Property Act. In that context, he has also relied upon a judgment of a learned Single Judge of this Court in the case of Annakkili vs. Murugan and another, reported in 2021 (2) LW 837

8. Drawing the attention of this Court to the registered Sale Deed executed by the respondent, he would submit that the order, dismissing the application filed by the petitioner under Order XXXVIII Rule 5 of CPC., had also been annexed as part of the Sale Deed registered in favour of the third party. Hence, it would indicate that the third party was aware of the litigation pending between the petitioner and the respondent. He would further submit that to create further confusion, even though the property had been sold, the respondent had also executed a settlement deed in favour of his wife. He would submit that these transactions are surreptitious transactions, to defeat the right of the petitioner in recovering the money. He would submit that the order holding that there was no apprehension would itself fall in view of the Sale Deed executed by the respondent. He would submit that such a sale and the subsequent settlement would itself would disclose the conduct of the respondent. Hence, he seeks the indulgence of this Court.

9. I have considered the submissions made by the learned counsel appearing for the petitioner and perused the materials available on record. 10. The reason that had been attributed by the trial court in rejecting the application under Order XXXVIII Rule 5 is that the apprehension of the petitioner that the respondent would transfer the property, which was sought to be attached was wholly unfounded. It is to be noted that the order made in the application for Attachment Before Judgment came to be dismissed by the court on 08.02.2021