HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 2545 of 2011 . DATED 9th November, 2011 BETWEEN Smt. Kondapalli Santha Kumar … Petitioner And Thotakura Ananda Babu ….Respondents. HONOURABLE SRI JUSTICE ASHUTOSH MOHUNTA CIVIL REVISION PETITION No. 2545 of 2011 . ORDER: This Civil Revision Petition under Article 227 of the Constitution of India is ﬁled aggrieved by the order dated 28.06.2011 whereby the learned Principal Senior Civil Judge, Eluru, West Godavari, dismissed the application ﬁled by the petitioner/plaintiﬀ under Order XXXVIII Rule 5 CPC seeking attachment before judgment against the retirement beneﬁts of the respondent/defendant which are lying in the hands of the garnishee— the District Medical & Health Oﬃcer, Eluru, West Godavari District. The petitioner/plaintiﬀ ﬁled the aforesaid suit for recovery of an amount of Rs.1,00,000/- from the respondent/defendant on the strength of a pronote. While so, the petitioner came to know that the respondent is going to retire shortly and is going to receive retirement beneﬁts. He therefore ﬁled the impugned application seeking attachment before judgment against the retirement beneﬁts alleging that the respondent/defendant is diverting the said amounts to evade his debt. The respondent/defendant contested the said application. His main averment is that the said pronote was a forged document and the said suit was got instituted for wrongful gain. It is his further case that the petitioner is a stranger to him. The Court below dismissed the impugned application under the order under revision observing that there was no apprehension of the respondent leaving the jurisdiction or disposing of any immovable property except the withdrawal of retirement beneﬁts in as much as no third party aﬃdavit was ﬁled to support the same. The learned Counsel for the petitioner vehemently argued that the main purport of the Order 38 Rule 5 CPC is to protect the interest of the plaintiﬀ during the pendency of the suit and as such the Court below failed to appreciate the same in the proper perspective. He submitted that if the respondent is allowed to withdraw the retirement beneﬁts, there is no possibility of realizing the decree that may be passed in favour of his client. Heard. Perused the case file. The purport of supplemental proceedings, viz., applications for arrest or attachment before judgment, grant of temporary injunctions and appointment of receivers, etc., is to prevent the ends of justice being defeated. The object of Order XXXVIII Rule 5 CPC, in particular, is to prevent any defendant from defeating the realisation of the decree that may ultimately be passed in favour of the plaintiﬀ, either by attempting to dispose of, or remove from the jurisdiction of the court, his movables. The scheme of Order XXXVIII and the use of the words in Rule 5 thereof, namely, “to obstruct or delay the execution of any decree that may be passed against him” make it abundantly clear that before exercising the power under the said Rule, the court should be satisﬁed that there is a reasonable chance of a decree being passed in the suit against the defendant. In other words, the court should be satisﬁed that the plaintiﬀ has a prima facie case. If the averments in the plaint including the documents annexed therewith do not satisfy the court about the existence of a prima facie case, the court will not go to the next stage of examining whether the interest of the plaintiﬀ should be protected by exercising power under Order XXXVIII Rule 5 CPC. It is well settled that merely having a just or valid claim or a prima facie case, will not entitle the plaintiﬀ to an order of attachment before judgment, unless he also establishes strikingly that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may ultimately be passed. It is equally well settled proposition of law that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiﬀ is not able to satisfy that he has a prima facie case. It is relevant to note that the power under Order XXXVIII 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. Further, the rationale of Order XXXVIII Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt in regard thereto by a plaintiﬀ to utilize the provisions of Order XXXVIII Rule 5 as a leverage for coercing the defendant to settle the suit claim should, under any circumstances, be discouraged. That apart, instances are not wanting where bloated and doubtful claims are realized by unscrupulous plaintiﬀs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment. It is therefore to be borne in mind that defendant is not debarred from dealing with his property merely because a suit is ﬁled or about to be ﬁled against him. Needless to mention, courts should keep in view the principles relating to grant of attachment before judgment while granting relief thereunder. Thus, it is only on the satisfaction of these principles, court can pass an order of attachment under Order XXXVIII Rule 5. In the case on hand, the Court below observed that the petitioner/plaintiﬀ failed to establish his apprehension that the respondent/defendant is making attempts to evade his debt and in furtherance thereto he is leaving the jurisdiction of the Court below. Furthermore, the very execution of the pronote is denied by the respondent/defendant contending that he gave signed but blank pronote to one Bhaskar Rao towards security for the debt of his son and that perhaps the said blank pronote is being used for raising the claim in dispute by fabricating the same. The truth or otherwise of these averments will be known only once the suit is ﬁnally adjudicated. At this stage, no deﬁnite conclusion can be arrived at in favour of either of the parties. In this backdrop, if the case of the petitioner/plaintiﬀ is tested on the touchstone of the principles governing Order XXXVIII Rule 5 CPC, I am of the opinion that the Court below has rightly considered and rejected the application of the petitioner/plaintiﬀ ﬁled under Order XXXVIII Rule 5 CPC. I do not see any illegality or irregularity in the order under revision. The Civil Revision Petition is devoid of merit and is accordingly dismissed. There shall be no order as to costs. ---------------------------------- ---- JUSTICE ASHUTOSH MOHUNTA Dated 9th November, 2011 Msnro