IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 19.10.2011 CORAM THE HON'BLE MR. JUSTICE VINOD K.SHARMA Application No.6243 of 2010 in C.S.No.723 of 2010 ORDER The plaintiff/applicant has filed the suit for recovery of Rs.54,22,403/- (Rupees fifty four lakhs twenty two thousand and four hundred and three only) from the respondent, who is his son-in-law. 2. The suit is based on the averments that it was the plaintiff/applicant, who sent money to the defendant from United States of America, for investment in real estate in the name of the plaintiff, but the respondent used the money for his own use and investments. 3. Along with the application, application under Order XXXVIII Rule 5 of the Civil Procedure Code has been moved with a prayer to order of attachment before Judgment of the properties belonging to the defendant. 4. In support of the prayer, the affidavit filed by the plaintiff reads as under: "1. I am the Power of Attorney of the applicant herein. 2. I state that the applicant has filed the above suit to recover a sum of Rs.54,22,853 from the respondent herein. The respondent promised the applicant that he would purchase immovable properties in the name of the applicant but invested the money given by the applicant to promote his own real estate business. The notices sent on behalf of the applicant were returned and the respondent is evading service. 3. I state that the respondent is owning an immovable property bearing door No.27, Padmavathiar Road, Gopalapuram, Chennai-86. The respondent is improving only his real estate business and he has no intention to pay the claim amount to the applicant though the applicant is the son-in-law of the respondent the latter wants to cheat the applicant by refusing to receive the notices sent at the instance of the applicant. If the respondent sell away his property or creates any encumbrance the applicant may not be in a position to recover his money. The respondent at any cost wants to abase the money given by the applicant and thus get an unlawful monetary benefit. Unless and otherwise the respondent's property namely No.27, Padmavathiar road, Gopalapuram, Ch-86, is attached before judgment the applicant may not be in a position to recover the money. Therefore, it is humbly prayed that this Hon'ble Court may be pleased to grant an order to furnish security failing which to order attachment before judgment of the respondent's property bearing door No.27, Padmavathiar road, Gopalapuram, Chennai-86, and thus render justice." 5. Order XXXVIII Rule 5 of the Civil Procedure Code reads as under:- "Where defendant may be called upon to furnish security for production of property.- (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,- (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified, [(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.] 6. A reading of the affidavit of the plaintiff/applicant shows that there is no averment to prove the intention of the defendant to dispose of the property to defeat the Decree. The affidavit even if taken on its face value, it does not disclose any cause of action to accept the application. 7. The application thus is totally misconceived. 8 . Consequently, the Application is dismissed. vks