IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD PRESENT : : THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.A No.646 of 2011 Dated:08-12-2011 Between: Abdulla Saleha Amer Shuja. ….Appellant. And K.P.Mohanan (died) and others. ….Respondents. The Court made the following: THE HON’BLE SRI JUSTICE N.V.RAMANA AND THE HON’BLE SRI JUSTICE P. DURGA PRASAD C.M.ANo.646 of 2011 ORDER: (per the Hon’ble Sri Justice P.Durga Prasad) This appeal is directed against the Order and decreetal Order passed in I.A.No.575 of 2010 in O.S.No.28 of 2010 by the Principal District Judge, Karimnagar on 27.06.2011. The appellant herein is the petitioner in the above said petition and the respondents herein are the respondents therein. The appellant herein has ﬁled the above said petition under Order 38 Rule 5 CPC for attachment of the cash lying in the Bank account of the 1st respondent in HDFC Bank Limited, Kannur, Kerala. The parties in the appeal are being referred to as mentioned in the petition before the lower Court. According to the petitioner, he ﬁled a suit for recovery of Rs.3,16,92,734-38 ps, basing on the agreement and promissory note executed by the 1st respondent on 03.08.2006. The 1st respondent also issued post dated cheques promising to pay the said amount within three years. The petitioner has presented both the cheques and they were returned. Hence he ﬁled a complaint under Section 138 of Negotiable Instruments Act. It is also further alleged that the 1st respondent has closed all his business establishments and siphoning all the money. The petitioner learnt through his close source and also common friends that the 1st respondent is alienating all his properties and he is not physically sound and lost all his health and he is being hospitalized and the execution of decree, if any passed, will be defeated if the attachment of property is not granted. After ﬁling of the petition the sole respondent died and his legal representatives were brought on record. They opposed the said application by ﬁling the counter contending that the petitioner is not an Indian citizen and he being a foreign national, he has no right to sue. The execution of power of attorney is illegal and would not confer any right or power on the attorney holder to ﬁle the proceedings. They also pleaded that the 1st respondent has no liability and there is no enforceable debt. According to them, the petitioner went to Kannur, forced and coerced the 1 st respondent to sign on the blank promissory notes against his will. According to them, the 1st respondent had only 1/7th share out of 4 cents in the immovable property situated in R.S.No.154/1, W-2, B- 5 bearing old Survey No.469 in Kannur town, Kerala and he has no other immovable properties and the above said properties are subject matter of the W.P.No.5327 of 2010 before the High Court of Kerala. The allegation that the 1st respondent is trying to alienate the property is absolutely false and invented for the purpose of the petition. Hence, the petition is liable to be dismissed. No oral and documentary evidence was produced on either side. The learned District Judge by taking into consideration of the respective pleadings held that the petitioner miserably failed to fulﬁll the mandatory requirements of Order 38 Rule 5 CPC and he is not entitled for discretionary relief of attachment before judgment and thereby dismissed the petition and attachment granted on 30.04.2010 is raised. Aggrieved by the said Order, the petitioner therein has preferred the present appeal. The appellant/petitioner’s counsel has pleaded that the 1st respondent is having a Bank account in HDFC Bank Limited, Kannur and he has become sick and closed down all his business establishments. As such even if the suit ﬁled by the appellant/petitioner against the 1st respondent is decreed, the execution of the decree will be defeated if the attachment of property is not granted. The respondents’ counsel on the other hand has pleaded that the appeal itself is not maintainable as the Order passed under Order 38 Rule 5 CPC is not an appealable Order. He further pleaded that the appellant/petitioner has not disclosed the source of information about the alienation of the property by the 1st respondent to defeat the suit claim and as the 1st respondent is no more, the allegations made against him does not hold good. Thus, the lower Court has rightly dismissed the application. With regard to the maintainability of the appeal, the respondents’ counsel has pleaded that the impugned Order was passed dismissing the application ﬁled under Order 38 Rule 5 CPC. As per Order 43 Rule 1 (q) an Order under rule 2, rule 3 or rule 6 are only appealable. The appellant’s counsel on the other hand has pleaded that the impugned Order was passed under Order 38 Rule 6 (2) CPC, as such the appeal is maintainable. In “UNION BANK OF INDIA, VISAKHAPATNAM V. M/S ANDHRA TECHNOCRAT INDUSTRIES AND ANOTHER[1]”, the Division Bench of this Court has held that “under Order 43 Rule 1 (q) of the Civil P.C., orders under Rule 6 (1) and (2) of Order 38 are appealabe. An Order dismissing an application under Order 38 Rule 5 is not appealable. An Order under Rule 5 merely directing the defendant to furnish security or to appear and show cause why security should not be furnished is also not appealable. Only an order allowing an application under Order 38 Rule 5 and an order withdrawing the attachment made under sub-rule (3) of Rule 5 of Order 38, any cause being shown by the defendant are appealable. In the instant case there being no interim attachment granted, the order did not fall within Rule 6 (2) and as such was not appealable”. In “R.S.CAMBRAY AND CO. (P.) LIMITED V. BISHNU BANERJEE[2]”, the Division Bench of Calcutta High Court has held that “no appeal would lie against an Order refusing attachment before judgment unless the same was preceded by a conditional attachment under Rule 5 (3) of Order 38 and as the impugned order in this case was not preceded by any such Order of conditional attachment, the impugned Order is not appealable.” In the present case, the conditional attachment was passed on 30.04.2010 directing the respondent to furnish the security within 10 days for the suit amount and place at the disposal of the Court when required under sub-rule 5 of Rule 1 of Order 38 CPC. The lower Court further ordered that under sub-rule 8, the conditional attachment of the amount equivalent to the suit amount said to be lying in the account of HDFC Bank Limited, KVR Towers, South Bazar, Kannur of Kerala State be deposit before the Court. After appearance of the respondent and hearing both parties, the impugned Order was passed. Thus, the impugned Order was passed under Order 38 Rule 6 (2) CPC. Thus, in view of the above referred decisions, the appeal is maintainable. With regard to the correctness of the impugned Order, according to the appellant’s counsel the 1 st respondent is trying to alienate the properties to defeat the suit claim and if the attachment is not granted, it may not be possible for him to realize the decreetal amount, if any passed in his favour. The respondents’ counsel on the other hand has pleaded that the petitioner has failed to establish the details of the properties, which the respondent is trying to alienate to defeat the suit claim of the petitioner and he has not disclosed the source of information, as such the learned District Judge has rightly dismissed the application. In “RAMAN TECH. & PROCESS ENGINEERING CO. AND ANOTHER V. SOLANKI TRADERS[3]”, the Apex Court has held that “the scheme of Order 38 and the use of the words “to obstruct or delay the execution of any decree that may be passed against him” in Rule 5 make it clear that before exercising the power under the said Rule, the court should be satisﬁed that there is a reasonable chance of a decree being passed in the suit against the defendant. This would mean that the Court should be satisﬁed that the plaintiﬀ has a prima-facie case. If the averments in the plaint and the documents produced in support of it, do not satisfy the Court about the existence of a prima-facie case, the court will not go to the next stage of examining whether the interest of the plaintiﬀ should be protected by exercising power under Order 38 Rule 5 CPC. It is well settled that merely having a just or valid claim or prima-facie, will not entitle the plaintiﬀ to an Order of attachment before judgment, unless he also establishes that the defendant is attempting to remove or dispose of his assets with the intention of defeating the decree that may be passed. Equally well settled is the position that even where the defendant is removing or disposing his assets, an attachment before judgment will not be issued, if the plaintiﬀ is not able to satisfy that he has a prima-facie case. The power under Order 38 Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiﬀ to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realized by unscrupulous plaintiﬀs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under threat of attachment”. In the present case the appellant/petitioner has sought for attachment of the money lying in the account of the 1st respondent in HDFC Bank Limited, Kannur, Kerala by pleading that the 1 st respondent is trying to alienate all his properties and he closed down his business and became sick and if the attachment is not granted, it is not possible for him to recover the amount even if the decree is passed in his favour. But he has not disclosed what are the properties owned by the 1st respondent and the details of the properties which he was trying to alienate to defeat the suit claim of the petitioner. Moreover he has not furnished the source of information in that regard. Admittedly, as on the date of passing of the impugned Order, the 1 st respondent is no more and his legal representatives contested the petition. Therefore, the question of 1st respondent trying to alienate the properties does not arise. When the petitioner seeking for attachment before judgment, the burden is heavily on him to establish the prima-facie case and also attempts made by the 1st respondent to defeat the suit claim. In the present case, as already observed above, the petitioner has not disclosed about the details of the property, which the 1 st respondent is trying to alienate or the source of information and he also not disclosed what is the amount available in the account of the 1st respondent in HDFC Bank Limited, Kannur, Kerala. Therefore, the learned District Judge has rightly come to the conclusion that the petitioner has failed to fulﬁll the mandatory requirements of Order 38 Rule 5 CPC and not entitled for the discretionary relief of attachment before judgment. In the above said circumstances, the said ﬁnding of the learned District Judge does not warrant any interference by this Court in the appeal. In the result, the Civil Miscellaneous Appeal is dismissed without costs. _______________________ JUSTICE N.V.RAMANA. _____________________________ JUSTICE P. DURGA PRASAD Dated:08-12 -2011 Ksp [1] AIR 1982 Andhra Pradesh 408 [2] AIR 1988 Calcutta 400 [3] (2008) 2 Supreme Court Cases 302