BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

RESERVED ON : 10.02.2022

PRONOUNCED ON : 25.03.2022

CORAM:

THE HONOURABLE MR.JUSTICE RMT.TEEKAA RAMAN

C.M.A(MD)No.1040 of 2021

and

C.M.P(MD)No.9816 of 2021

1.N.K.Palaniayappan

2.N.P.Thirugnane Sambantham

.. Appellants/Respondents/

Defendants

Vs.

T.Anthony Michael Prabu

.. Respondent/Petitioner/

Plaintiff

PRAYER: Civil Miscellaneous Appeal filed under Section 104 and Order

43 (1) (q) of Civil Procedure Code, against the fair and decreetal

order, dated 23.09.2021 made in I.A.No.40 of 2021 in O.S.No.03/2021

on the file of the Fast Track Mahila Judge at Dindigul.

For Appellants

: Mr.S.Arivazhagan

For Respondent

: Mr.Veerakathiravan

Senior Counsel

for Mr.C.Gangai Amaran

JUDGMENT

The defendants in the suit are the appellants herein. The

respondent/plaintiff filed a suit in O.S.No.3 of 2021 for recovery

of money based on the pro-note for the value of Rs.12,00,000/- and

along with the interest, he laid the suit for Rs.14,06,000/-.

Pending suit, the plaintiff filed I.A.No.40 of 2021 in O.S.No.3 of

2021 under Section 38 Rule 5 of CPC for attachment of the property

before judgment and to direct the defendants to submit security for

the said suit amount.

2. On notice the respondents/defendants have furnished security

by giving a property in Gobichettipalayam as reflected in S.F.No.17B

and New S.F.No.359/2 of Kalingiyam Village, Gobichetipalayam Taluk,

Erode District, having worth of Rs.1,09,50,000/- and hence prayed

for confirmation of the security given.

3. On the other hand, the plaintiff has resisted the security

furnished by the respondents/defendants on the ground that the

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property, which is now offered as a security has already been

furnished as a security in I.A.No.2 of 2019 in O.S.No.92 of 2019 on

the file of the learned III-Additional District Judge,

Gobichettipalayam. In order to prove the same, he has marked Ex.P5

as to the order of attachment passed by the learned III-Additional

District Judge, Gobichettipalayam in respect of the security now

furnished in this case. Since the property offered by the defendants

is already stood attached in other civil Suit, the learned Sessions

Judge(Fast Track Mahila Court), Dindigul has rejected the offer made

by the defendants and passed order of attachment schedule of the

property. Hence, the appeal by the defendants.

4. The short point for consideration is whether the order of

attachment made by the learned Sessions Judge (Fast Track Mahila

Court), Dindigul, in respect of the property mentioned in the suit

IA or the security furnished by the defendants be accepted as

security as a substitute for a petition property now under order

attachment before judgment. The lower Court records reveals that

due opportunity was given to the defendants to furnish security,

pursuant to that the defendants/appellants have furnished alternate

property (other than the petition mentioned property) and prayed for

acceptance of the alternate property as a security for this

proceedings.

5. As per Ex.P4 and Ex.P5, the property now offered by the

appellants/defendants as a security for the suit claim in O.S.No.3

of 2021 before the learned Sessions Judge(Fast Track Mahila Court),

Dindigul is already given as a security in the IA filed under Order

38 Rule 1, in I.A.No.2 of 2019 in O.S.No.92 of 2009 on the file of

the learned III-Additional District Judge, Gobichettipalayam. The

fact that the alternate property now offered by the defendants, is

already accepted as a security to the suit in O.S.No.92 of 2009 as

could be seen from Ex.P4 and Ex.P5.

6. The learned counsel for the appellants could contend that

the security bond for the protection of the property worth about

Rs.33,00,000/- more than the value of the present suit and hence,

the trial Court has committed an error in rejecting the alte