THE HON’BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL REVISION PETITION NO.14 OF 2010 %10.03.2010 #Koushik Advertising Media, represented by its Proprietor and another ...APPELLANTS VERSUS $Poluru Gopala Krishnaiah ...RESPONDENT < GIST: > HEAD NOTE: !Counsel for Appellant: Smt.Jyotieswar Gogineni ^Counsel for Respondent: Sri P.Veera Reddy ? Cases referred IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) WEDNESDAY, THE TENTH DAY OF MARCH TWO THOUSAND AND TEN PRESENT HON'BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL REVISION PETITION No.14 of 2010 Between: Koushik Advertising Media, represented by its Proprietor and another … Petitioner And Poluru Gopala Krishnaiah. … Respondent This Court made the following: HON’BLE SRI JUSTICE L.NARASIMHA REDDY CIVIL REVISION PETITION No.14 of 2010 ORDER:- The respondent filed O.S.No.389 of 2009 in the Court of Principal Junior Civil Judge, Proddutur against the petitioner for recovery of a sum of Rs.98,000/-. He has also filed I.A.No.1060 of 2009 under Order XXXVIII Rule 5 of the Civil Procedure Code, 1908, (for brevity, “CPC”) with a prayer to direct attachment of the items of property mentioned therein, before judgment, alleging that the petitioner is likely to remove them from the jurisdiction of the Court. The dispute is in relation to entrustment of advertising agency by the petitioner in favour of the respondent. The trial court passed an order dated 02.01.2010 directing the petitioner to furnish security within 48 hours and in default, directed the bailiff to attach the petition schedule property. Petitioner feels aggrieved by the same. Smt.Jyothieswar Gogineni, learned counsel for the petitioners, submits that the dispute between the petitioners and the respondent was resolved amicably through arbitration and the conditions imposed therein, have been complied with by both the parties. She contends that the respondent misused the process of Courts by filing as many as four suits before the same Court and to continue its business, the petitioner had to deposit Rs.3,20,000/- in other suits. The learned counsel further submits that the timing of the order passed in the I.A. was such that the compliances in the condition became impossible and invariably it led to attachment. Sri P.Veera Reddy, learned counsel for the respondent submits that the order passed by the trial Court is only provisional in nature and final orders are yet to be passed after hearing both the parties. He contends that the petitioners can put forward all their contentions before the trial Court. Rule 5 of Order XXXVIII of CPC provides for attachment before judgment in a suit filed for recovery of amount. The plaintiff has to satisfy the Court about the ingredients of Rule 5 namely, that the defendant is about to dispose of whole or part of his property or that he is about to remove the property from the jurisdiction of the Court. On being satisfied prima facie on those aspects, the Court has to give reasonable time to the defendant to explain as to why the defendant, be not required to furnish security or to show case as to why the security be not furnished. The time to be specified by the court for this purpose must be reasonable and workable. If the timing is such that the defendant is not given an opportunity at all and the property comes to be attached on expiry of the time, the whole exercise becomes untenable and sometimes even mala fide. In the instant case, the trial Court stipulated 48 hours and the order was passed just before it closed for winter vacation. The learned presiding officer of the trial Court ought to have examined the issue from the practical point of view, even while protecting the interests of the respondents. Since the Court remained closed for winter vacation soon after the order was passed, the petitioner was left with no alternative except to approach this court during vacation and an order of interim suspension was passed by this Court. Now that the petitioner is ready with counter to the I.A. the trial Court has to examine the matter on merits. It is also brought to the notice of this court that the petitioner had to deposit a sum of Rs.3,20,000/- in three suits, where the orders of attachment before judgment were made. If that is true, it amounts to an improper exercise of power by the trial Court under Order XXXVIII Rule 5 of CPC. A plaintiff in a suit cannot stand on a higher footing than a decree holder in an Execution Petition. When suit claim is yet to be decided, requiring the petitioner to deposit the entire suit amount is totally impermissible in law. It is hoped that the trial Court would take necessary corrective steps, lest the matter be examined in detail by this Court. The Civil Revision Petition is accordingly allowed and the order of conditional attachment passed by the trial Court is set aside. Now that the petitioner entered appearance, the matter shall be decided by the trial Court on merits within a period of two weeks from the date of receipt of a copy of this order. There shall be no order as to costs. _______________________ L.NARASIMHA REDDY, J 10th March 2010 lmv