THE HONOURABLE SMT. JUSTICE K. SUJANA CIVIL REVISION PETITION No.3630 of 2023

ORDER:

Challenging the order dated 21.12.2021 passed in I.A.No.728 of 2021 in O.S.No.789 of 2016 by the learned XIII Additional District and Sessions Judge-cum-Additional Metropolitan Sessions Judge, Cyberabad, L.B. Nagar, Ranga Reddy District.

2. The brief facts of the case are that the respondent/plaintiff filed O.S.No.789 of 2016 for recovery. During the pendency of the said suit, the respondent/plaintiff filed I.A.No.728 of 2021 under Order XXXVIII Rule 5 of CPC to attach Rs.26,00,000/- lying with the garnishee in E.P.No.06 of 2021/COP.No.22 of 2021. The trial court, after hearing both sides, allowed the petition on 21.12.2021, observing the apprehension of the petitioner was justified. Since the defendant/petitioner did not resist, the court held the claim of the petitioner just and necessary, ordering attachment of Rs.26,00,000/- from E.P.No.06 of 2021/COP.No.22 of 2021.

Aggrieved by the same, the present civil revision petition is filed.

3. Heard Sri Sinde Mohan, learned counsel appearing on behalf of the petitioner as well as Sri Prabhakar Bommagani, learned counsel appearing on behalf of the respondent.

4. Learned counsel for the petitioner submitted that the impugned order granting attachment before judgment is erroneous, contrary to law, and passed without jurisdiction. The trial Court failed to consider that attachment is a drastic measure with serious repercussions, requiring satisfaction that a favorable decree is likely. He further submitted that no prima facie case was made, and no evidence or documents were considered. The order was passed mechanically, without examining balance of convenience, irreparable loss, or reasonable findings. He contended that the respondent failed to discharge the burden of proof, and no material established attempts to dispose of or alienate property. The application was not maintainable due to a prior identical IA. The trial Court overlooked the speculative nature of the litigation and the lack of substantiating evidence, warranting setting aside the order.

5. Learned counsel for the petitioner further submitted that the trial Court erred in granting attachment before judgment, failing to consider the sufficient cause of the petitioner, lack of prima facie case, and absence of evidence showing intent to dispose/alienate property. The trial court neglected mandatory provisions under Order XXXVIII Rule 6(2) and failed to assess the likelihood of respondent of securing a favorable decree. No material supported the attachment, and the court misapplied Order XXXVIII Rule 5, which requires evidence of disposal or alienation attempts.

6. Learned counsel for the petitioner further contended that the basis for apprehension of the trial Court was unclear, and attachment was granted without resistance, an insufficient reason. Additionally, this Hon'ble Court previously set aside a related order vide CRPNo.1218 of 2017. Attachment would harm M/s Brahma Teja Paper Products, an MSME, and disregarded the MSME Act's beneficial legislation. The trial Court overlooked the written statement of the defendant and mechanically relied on Order XXXVIII Rule 5. Therefore, he prayed the Court to set aside the order of the trial Court by allowing this civil revision petition.

7. In support of his submissions, learned counsel for the petitioner relied upon the judgment of the Hon’ble Supreme Court in Raman Tech and Process Engg. Co. and Ors v. Solanki Traders, [MANU/SC/8119/2007], wherein in paragraph No.5, it is held as follows:

“5. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defen