THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION NO.4347 OF 2009 9TH DECEMBER, 2009 BETWEEN: M/S.EAST WEST MARINE ENGINEERING WORKS AND OTHERS .. PETITIONERS AND A.MAJEED .. RESPONDENT THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY CIVIL REVISION PETITION NO.4347 OF 2009 O R D E R: This Civil Revision Petition is directed against the order dated 12.8.2009 passed in I.A.No.805 of 2009 in O.S.No.174 of 2009 on the file of I Additional District Judge, Visakhapatnam, whereby and where under the learned District Judge ordered conditional attachment of item Nos.1 to 3 of the petition schedule properties and also restrained the defendants from alienating item Nos.1 to 4 of the petition schedule properties pending disposal of the suit. 2. Notice before admission came to be ordered on 18.9.2009. An order of interim suspension of the order impugned in the revision has also been granted on the even date. The respondent entered appearance and filed CMP.No.164 of 2009 with a prayer to vacate the interim order of suspension. When the vacate stay petition came up for consideration, with the consent of learned counsel for the parties, the revision itself is taken up for final disposal at the admission stage. 3. Heard learned counsel appearing for the parties. 4. Learned counsel appearing for the petitioners submits that the trial Court ordered attachment of item Nos.1 to 3 of the petition schedule without complying with Order XXXVIII, Rule 5(1) CPC and therefore the order impugned in the revision is liable to be set aside. A further submission has been made that the petitioners/defendants are not contemplating to alienate item Nos.1 to 3 of the petition schedule properties and the order of attachment is unwarranted. To prove the bonafides of the petitioners/defendants that they are not alienating item Nos.1 to 3 of the petition schedule properties, an undertaking affidavit of D2 has been placed on record. Para 2 of the undertaking affidavit reads as under: “ 2. I humbly submit that the respondent filed O.S.No.174 of 2009 on the file of court of Principal District and Sessions Judge, Visakhapatnam for the recovery of amount of Rs.2,28,59,432/- basing on sale/purchase agreement, in fact the respondent initially filed plaint claiming the suit amount as Rs.1,06,59,432/-, but without my knowledge, or any notice to me seems to have got amended the plaint. In the said suit, the respondent made an application in I.A.No.805 of 2009 seeking for conditional attachment before judgment of our properties as if they are situated at Visakhapatnam. But, it appears that without to my notice, the schedule was also got amended stating that the properties situated at Kakinada. The court below on erroneous consideration of law and facts, granted an exparte order of conditional attachment directing us to furnish security by 14.9.2009 and restraining us from alienating the properties vide its order dated 12.8.2009 without there being any material on record to grant such order. Aggrieved by the same, we preferred the CRP.No.4347 of 2009 on the file of this Honourable Court and sought for suspension of the order passed in I.A.No.805 of 2009 in O.S.No.174 of 2009. The Honourable court having found prima facie case suspended the operation of the order vide its order dated 18.9.2009 and ordered personal notice to the respondent. The respondent having served with notice made his appearance to their counsel. Now the matter is being posted for admission. While it was so, the respondent filed counter affidavit seeking vacation of the suspension orders at this stage this Honourable court directed me to file an affidavit undertaking not to alienate the suit properties pending disposal of the suit. 3. I further humbly submit that I have no need or necessity to alienate the properties. I am unconditionally undertaking that I will not alienate the properties sought for attachment till the disposal of the suit O.S.No.174 of 2009 on the file of I Additional District Judge, Visakhapatnam. So, I request this Honourable Court to kindly dispose of the present CRP with the said direction and direct the court below to close I.A.No.850 of 2009 without there being any further enquiry. Hence, this affidavit.” 5. Learned counsel appearing for the respondent/plaintiff submits that the petitioners/defendants already entered into an agreement with one A.E.Prasanna Kumar with regard to sale of the properties which are part and parcel of the properties sought for attachment and therefore the assertion of the respondent/ plaintiff that the petitioners/defendants are trying to alienate the petition schedule properties so as to defeat the claim of the respondent/plaintiff has been substantiated. 6. In response, learned counsel appearing for the petitioners/ defendants submits that the said agreement dated 12.5.2009 has been cancelled and whatever amount received from A.E.Prasanna Kumar has been returned and as on this day, the agreement is not in force. 7. The respondent/plaintiff filed the suit against the petitioners/ defendants for recovery of Rs.2,28,59,432/-. Pending the suit he also filed I.A.No.805 of 2009 under Order 38 Rule 5 CPC seeking attachment before judgment of the petition schedule property. The learned Principal District Judge, Visakhapatnam passed the following exparte ad-interim order on 12.8.09: “ Heard issue urgent notice calling upon the respondents to furnish security for the suit amount failing which a conditional attachment is hereby ordered against item Nos.1 to 3 of petition schedule properties. The respondent are hereby restrained from alienating the petition schedule property item Nos.1 to 4 pending disposal of the suit. Hence, issue conditional attachment and notice by 14.9.2009.” 8. It appears the conditional attachment is not effect as on this day. The application filed by the respondent/plaintiff under Order VIII Rule 5 CPC is not yet finally disposed of. The petitioners/defendants are at liberty to file counter in I.A.No.805 of 2009 and invite orders thereof on merits. Since the petitioners/ defendants filed undertaking before this Court, the undertaking shall remain in force till the disposal of I.A.No.805 of 2009 on merits. 9. Accordingly, this Civil Revision Petition is disposed of setting aside the order of the trial Court to the extent of issuing conditional attachment. The trial Court is directed to dispose of I.A.No.805 of 2009 after considering the counter of the defendants and pass appropriate orders. 9th December, 2009. (B.Seshasayana Reddy,J) tnb cc in one week. THE HONOURABLE SRI JUSTICE B.SESHASAYANA REDDY C.R.P.NO.4347 OF 2009 9TH DECEMBER, 2009.