IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF JULY TWO THOUSAND AND TEN HON’BLE SRI JUSTICE G. BHAVANI PRASAD Civil Revision Petition No.4404 of 2007 Between: Rayala Purashotham Rao .. Petitioner AND V. Nageshwar Rao .. Respondent Petition under Article 227 of the Constitution of India against the order of the Agent to Government at Khammam, dated 07-09-2007 in I.A. No.66 of 2005 in O.S. No.98 of 2005. The petition coming on for hearing, upon perusing the petition and the grounds filed in support thereof and upon hearing the arguments of Sri Gudiseva Narasimha Rao, Advocate representing Sri Palivela Satyarajababu, Advocate for the revision petitioner, the Court made the following ORDER: The civil revision petition is directed against the order passed by the Agent to Government at Khammam in I.A. No.66 of 2005 in O.S. No.98 of 2005, dated 07-09-2007. The respondent herein filed a suit against the revision petitioner for recovery of Rs.1,66,200/- with interest and costs and also applied for attachment of the petition schedule property belonging to the revision petitioner before judgment. In the affidavit in support of the petition for attachment, the respondent stated that the revision petitioner herein was heavily indebted to many others and was evading repayment of his debts and is also making hectic efforts to alienate his house. Hence, apprehending difficulty in realization of any amount that may be decreed in his favour, the respondent herein sought for attachment before judgment of the house covered by the petition schedule. The request for attachment before judgment was resisted denying execution of the pronote or his liability for the suit amount and also denying the allegations about the debts and the attempts of alienation by the revision petitioner. The revision petitioner claimed to be a regular businessman doing business in pharmacy since many years and to be having movable and immovable properties. He, therefore, desired the request for attachment before judgment to be negatived. The learned Agent in the impugned order observed that a notice was issued to the revision petitioner to furnish security for the suit amount within 72 hours or to appear before the Court on the specified date to show cause against the direction to furnish security and subject to the same, a warrant was issued for attachment of the property. The impugned order also noted that both the parties attended the hearing on 17-08-2007 and considering the rival contentions of the parties, the learned Agent noted that the revision petitioner failed to furnish any security so far and the learned Agent also relied on the enquiry said to have been conducted by the Mandal Revenue Officer, Manuguru and felt that the attachment has to be confirmed. Therefore, he directed the Mandal Revenue Officer to attach the property and take possession of the same into Government custody until further orders. The revision petitioner challenged the said order herein contending that the trial Court did not appreciate that no third party affidavits were filed in support of the respondent’s version and it failed to appreciate the documents filed on behalf of the revision petitioner to show that he is running business and he is an income tax assessee. As no prima facie case is made out under Order XXXVIII Rule 5 of the Code of Civil Procedure, the attachment cannot be sustained. The Mandal Revenue Officer is taking steps to take possession of the property in pursuance of the order and hence, the revision. The impugned order was suspended by virtue of the orders in C.R.P.M.P. No.5789 of 2007, dated 04-10-2007. Heard Sri Gudiseva Narasimha Rao, learned counsel representing Sri Palivela Satyarajababu, learned counsel for the revision petitioner and none appeared for the respondent though he was served with notice of the revision petition. The point for consideration is whether the direction to attach the property before judgment and to take possession of the same is sustainable ? Point: Order XXXVIII Rule 5 of the Code of Civil Procedure enables the Court to direct the defendant either to furnish security or to appear and show cause as to why he should not furnish security, if it is satisfied that with intent to obstruct or delay the execution of any decree, the defendant is about to dispose of the whole or any part of his property, etc. The Court can also direct conditional attachment of such property and it is mandatory that any order of attachment shall comply with the provisions of Sub- rule (1). If the security as directed is not furnished, Rule 6 of Order XXXVIII enables the property to be attached. In the present case, the suit was for recovery of Rs.1,66,200/- with interest at 24 per cent per annum and costs and admittedly, the suit is pending . The truth or otherwise of the suit claim cannot be the subject matter of enquiry in considering any request for attachment before judgment of any property. In so far as the request for attachment is concerned, specific allegations are made on oath by the respondent against the revision petitioner claiming the revision petitioner to be heavily indebted and to be making efforts to alienate his properties including the suit house. Though such allegations are denied and the revision petitioner claimed himself to be a substantial person as per his counter affidavit, the impugned order shows that he did not comply with the order passed under Order XXXVIII Rule 5 of the Code of Civil Procedure either to furnish security or to show cause as to why he should not be directed to furnish such security though the date of hearing was fixed for such purpose. The impugned order recorded that the revision petitioner did not furnish security either within the specified time or even later. It is also seen from the impugned order that the substantial nature of the suit claim and the absence of any response to the notice under Order XXXVIII Rule 5 of the Code of Civil Procedure led the learned Agent to pass the order in question. The subjective satisfaction of the Court below that this is a fit case to order furnishing of security or showing cause against it on the strength of the affidavit filed by the respondent herein, cannot be considered to be exercise of any jurisdiction which did not vest in it. The satisfaction of the Court on such affidavit need not be interfered with in the absence of any contrary material. The failure of the revision petitioner to furnish security subsequently also may show the justification for the conditional order passed by the learned Agent. It is not the claim of the revision petitioner that any security has been furnished or offered to be furnished so far and therefore, the direction to attach the petition schedule property before judgment need not be interfered with. However, the direction of the learned Agent to take possession of the petition schedule property into Government custody until further orders goes beyond the scope of the permissible mode of making the attachment under Rule 7 of Order XXXVIII of the Code of Civil Procedure. The said rule provides that attachment shall be made in the manner prescribed for the attachment of the property in execution of a decree and it is seen from the provisions of Order XXI Rule 54 of the Code of Civil Procedure that the attachment of any immovable property shall be made only by an order prohibiting the judgment-debtor from transferring or charging the property in any way, and all the persons from taking any benefit from such transfer or charge. The rule further provides for the manner in which such order shall be proclaimed and also provides for requiring the judgment-debtor to attend the Court on a specified date. The said rule or any rules which follow the same in respect of such attachment of immovable property do not provide for taking possession of the attached property into Government custody or into the custody of the Court or the decree-holder in any manner. The specific procedure prescribed for proceeding against the attached property in the event of any decree being passed is different and proceeding against the property attached before judgment will also be only after a decree is passed and not before. Therefore, to the extent of the order of the learned Agent to take possession of the petition schedule property into Government custody until further orders is concerned, the same has to be set aside. The revision petitioner cannot claim any prejudice on being prohibited from dealing with the property until final determination of the monetary reliefs claimed against him on merits. Accordingly, the order in I.A. No.66 of 2005 in O.S. No.98 of 2005 on the file of the Agent to Government at Khammam, dated 07-09-2007 is confirmed in respect of the direction to attach the petition schedule property before judgment and is set aside to the extent of the direction to take possession of the petition schedule property into Government custody until further orders. The civil revision petition is ordered accordingly. No costs. _____________________ G. BHAVANI PRASAD, J Date: 01-07-2010 Svv