IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD THURSDAY, THE FIRST DAY OF APRIL TWO THOUSAND AND TEN PRESENT THE HON'BLE SRI JUSTICE K.C.BHANU CIVIL MISCELLANEOUS APPEAL NO. 1222 OF 2009 Between : M/s. S.E.Graphites Pvt.Ltd., Rep.by its Executive Director. .... Appellant. A N D M/s. Srinivasa Chemical Agencies and another. …Respondents THE HON'BLE SRI JUSTICE K.C. BHANU CIVIL MISCELLANEOUS APPEAL NO. 1222 OF 2009 J U D G M E N T: This Civil Miscellaneous Appeal, under Order XLIII Rule 1 of the Code of Civil Procedure, 1908 (for short, “ the C.P.C.”), is directed against the order, dated 13.11.2009 in I.A. No.265 of 2009 in O.S.No.350 of 2005, on the file of XII Additional Senior Civil Judge (F.T.C), City Civil Court, Secunderabad, whereunder and whereby the application filed under Order 38 Rule 5 r/w Section 151 of the C.P.C. to attach property before Judgment, was dismissed. 2. Heard both sides. 3. O.S. No.350 of 2005, was filed by the appellant for recovery of money. The present stage of the suit is, plaintiff’s side evidence is closed and the defendants side evidence is at the fag end. At this stage, the appellant filed the above application under Order 38 Rule 5 of the C.P.C. to direct the respondents to furnish the bank guarantee or security for the suit amount. 4. Under Order 38 Rule 5 of the C.P.C. an application can be filed at any stage when the defendant is about to dispose of whole or any part of his property or is about to remove property from the local limits of the jurisdiction, and in such a case, such an order can be passed. 5. In the first instance Court can give a direction to the respondents to furnish the security. There is no allegation in the affidavit filed in support of the petition, that the respondents are about to remove the property out of the jurisdiction or is about to dispose of the property. Though it is stated in the counter that the respondents already sold the property prior to institution of the suit, the said admission cannot be a ground to bring the case under Order 38 Rule 5 of the C.P.C. As the ingredients of Order 38 Rule 5 of the C.P.C, have not been fulfilled so as to give a direction to the respondents to furnish the security, the trial court rightly dismissed the application. The said order needs no interference by this court, as there is no allegation in the affidavit that the respondents are about to dispose of the property. Therefore the appeal is devoid the merits and is liable to be dismissed. 6. Accordingly the Civil Miscellaneous Appeal is dismissed. No costs. _______________ K.C.BHANU. J APRIL 1, 2010. YVL