THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.4683 OF 2010 Date: 13.04.2011 Between: Syed Jaffar and others …..Petitioners And Syed Jabbar …..Respondent THE COURT MADE THE FOLLOWING: THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.4683 OF 2010 ORDER: This Civil Revision Petition arises out of the order dated 29.08.2009 passed by the learned Senior Civil Judge, Kadapa in I.A.No.213 of 2009 in O.S.No.43 of 2009. By the said order, the trial Court dismissed the application filed by the petitioners herein, the plaintiffs in O.S.No.43 of 2009, under Order XXXVIII Rule 5 C.P.C. seeking attachment of the petition schedule property in the said I.A. The suit, being O.S.No.43 of 2009, was filed seeking specific performance of the agreement of sale dated 1.12.2007 entered into by and between the plaintiffs and the 1st defendant in the suit. Alternately, the plaintiffs sought refund of the amount advanced by them along with penalty and interest. Apprehending that the 1st defendant was attempting to dispose of his own property so as to defeat the interest of the petitioners/plaintiffs, they filed I.A.No.213 of 2009 in O.S.No.43 of 2009 under Order XXXVIII Rule 5 seeking the attachment of the property bearing Door No.2/950 situated at Sree Hari Rao Street, Nagarajupet, Kadapa, belonging to the 1st defendant, pending judgment. The Court below, by the order under revision, dismissed the said application. Hence, this Civil Revision Petition. Perusal of the order under revision reflects that the Court below was under the impression that the petitioners/plaintiffs sought attachment of the suit schedule property itself and as the 1st defendant was only an agreement holder in respect of the said property and had no title and possession over the same, the trial Court opined that the said property could not be attached for recovery of the advance amount from the 1st defendant. The trial Court therefore held that the petition was not maintainable for attaching the said property as the 1st defendant was not the owner of the same. However, as pointed out supra, this assumption of the trial Court was erroneous on facts as the petition schedule property in I.A.No.213 of 2009 was a separate property owned by the 1st defendant and not the suit schedule property. This Court, by order dated 29.10.2010, while issuing notice before admission directed the respondent herein, the 1st defendant in the suit, not to alienate the petition schedule property in I.A.No.213 of 2009 in O.S.No.43 of 2009 for a period of six weeks. Despite service of notice as long back as on 8.11.2010, the respondent did not choose to appear before this Court in person or through counsel. As the petitioners, being the plaintiffs in the suit, alternately sought refund of the advance amount paid by them, along with penalty and interest, and as they apprehended that the 1st defendant in the suit, the respondent herein, was attempting to dispose of his property so as to defeat their claim, they sought attachment of his property. In this regard, the Court below necessarily had to go into the details as to whether sufficient grounds were made out for this apprehension of the petitioners/plaintiffs. The Court below, being under the mistaken impression that the petitioners/plaintiffs sought attachment of the suit schedule property over which the 1st defendant had no title, however dismissed the application without going into the merits. The order dated 29.8.2009 passed by the trial Court in I.A.No.213 of 2009 in O.S.No.43 of 2009 is therefore set aside and the mater is remitted to the Court of the learned Senior Civil Judge, Kadapa for consideration afresh on merits and in terms of Order XXXVIII Rule 5 C.P.C. Till the disposal of the application by the trial Court, the 1st defendant in the suit, shall not alienate the petition schedule property in I.A.No.213 of 2009 in O.S.No.43 of 2009. The Civil Revision Petition is allowed. No order as to costs. _________________________ JUSTICE SANJAY KUMAR Dt: 13.04.2011 Note: C.C. in one week Tjmr THE HON’BLE SRI JUSTICE SANJAY KUMAR CIVIL REVISION PETITION NO.4683 OF 2010 DATE: 13.04.2011