C.M.A.(MD)Nos.360 and 361 of 2012

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

Reserved on : 01.12.2021

Delivered on : 23.12.2021

CORAM:

THE HONOURABLE MR.JUSTICE S.VAIDYANATHAN

and

THE HONOURABLE DR.JUSTICE G.JAYACHANDRAN

C.M.A.(MD)Nos.360 and 361 of 2012

and

M.P.(MD)Nos.1 and 1 of 2012

C.M.A.(MD)No.360 of 2012:-

K.Thirumalaivadivu

... Appellant/2^nd Respondent/

Plaintiff

-vs-

1.S.Rajasekaran

... 1^st Respondent/ 1^st Respondent/

Defendant

2.S.Baskaran

... 2^nd Respondent/Petitioner/

3^rd Party

PRAYER: Civil Miscellaneous Appeal filed under Order XXI Rule 58(4)

of C.P.C., to set aside the order dated 25.01.2011, passed in

I.A.No.381 of 2010 in O.S.No.47 of 2010, on the file of the

Principal District Court, Virudhunagar District at Srivilliputhur.

For Appellant

:

Mr.AR.L.Sundaresan

Senior Counsel

for Mr.N.Tamilmani

For Respondent No.1

:

Mr.H.Lakshmi Shankar

For Respondent No.2

:

Mr.Srinivasa Raghavan

for Mr.Kirubakaran

C.M.A.(MD)No.361 of 2012:-

Gandhi, S/o.R.S.Somasundaram

... Appellant/2^nd Respondent/

Plaintiff

1/12

https://hcservices.ecourts.gov.in/hcservices/

C.M.A.(MD)Nos.360 and 361 of 2012

-vs-

1.S.Rajasekaran

... 1^st Respondent/ 1^st Respondent/

Defendant

2.S.Baskaran

... 2^nd Respondent/Petitioner/

3^rd Party

PRAYER: Civil Miscellaneous Appeal filed under Order XXI Rule 58(4)

of C.P.C., to set aside the order dated 25.01.2011, passed in

I.A.No.380 of 2010 in O.S.No.46 of 2010, on the file of the

Principal District Court, Virudhunagar District at Srivilliputhur.

For Appellant

:

Mr.AR.L.Sundaresan

Senior Counsel

for Mr.N.Tamilmani

For Respondent No.1

:

Mr.H.Lakshmi Shankar

For Respondent No.2

:

Mr.Srinivasa Raghavan

for Mr.Kirubakaran

COMMON JUDGMENT

(Judgment of the Court was made by DR.G.JAYACHANDRAN, J.)

These Civil Miscellaneous Appeals are directed against the

order passed by the trial Court in the Interlocutory Applications

filed by the third party [second respondent in both the appeals], to

raise attachment before judgment and succeeded.

2.The brief facts common to both the appeals are as follows:-

(i) One Rajasekaran, who is the first respondent in both

the appeals alleged to have borrowed a sum of Rs.25,00,000/- on

16.04.2008 from one R.S.Gandhi, the plaintiff in O.S.No.46 of 2010.

He has not repaid the loan amount, despite promise to pay the same

with interest on demand, on executing a Pro-note. After issuance of

the pre-suit notice, the suit in O.S.No.46 of 2010, for recovery of

Rs.31,10,833/- was filed before the Principal District Court,

Virudhunagar District at Srivilliputhur.

(ii) Similar suit was instituted against Rajasekaran by

K.Thirumalaivadivu, W/o.R.S.Gandhi, in O.S.No.47 of 2010, on the

file of the Principal District Court, Virudhunagar at

Srivilliputhur, alleging that he borrowed a sum of Rs.20,00,000/- on

22.05.2008 and promised to repay it with interest at Rs.1/- per

Rs.100/- per month. Despite execution of the pro-note for the money

borrowed, he failed to repay the money and therefore, suit for

recovery of Rs.24,64,666/- filed after issuance of pre-suit notice.

(iii) In both the suits, the respective plaintiffs have

taken out the interlocutory applications viz., I.A.No.125 of 2010 in

2/12

https://hcservices.ecourts.gov.in/hcservices/

C.M.A.(MD)Nos.360 and 361 of 2012

O.S.No.46 of 2010 and I.A.No.126 of 2010 in O.S.No.47 of 2010, for

attachment before judgment of the house property of the defendant

Rajasekaran [first respondent]. These applications for attachment

before judgment on the first day of hearing, i.e., 30.04.2010 was

considered by the trial Court and the respondent Rajasekaran was

directed to furnish security for a sum of Rs.45,00,000/- on or

before 08.06.2010, failing which, attachment by 08.06.2010. The

first respondent after receiving the summons in the suit and notice

in the attachment