HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.5706 of 2007 ORDER: Heard Sri P. Sridhar Rao, learned counsel for the revision petitioner, and Sri G. Anandam, learned counsel for the respondents. This civil revision petition is directed against the order passed by the Senior Civil Judge, Siricilla, in I.A.No.168 of 2007 in O.S.No.24 of 2007 on 20.08.2007 negativing the request of the plaintiff/revision petitioner to have an attachment before judgment of the petition schedule properties. The plaintiff requested for attachment before judgment of the petition schedule properties of a house, open land and tin sheds located at Manthani near the Government Girls High School, alleging that the suit for recovery of Rs.5,14,065/- with future interest and costs will be subject to difficulty in execution in case of a decree, as defendants 1 and 2 were going to sell the petition schedule properties. It was also alleged that they already sold some open land and tin sheds in House Nos.14-68/1 and 14-68/2 of item No.2 of the petition schedule. Defendants 1 to 3 resisted the request for interim attachment before judgment alleging that the source of information about the alleged attempts for alienation was not stated and the plaintiff has not mentioned his relationship with the 1st defendant though the 1st defendant is his father-in-law. During enquiry, the trial Court marked Exs.P.1 and P.2 and noted the relationship between the parties in the impugned order and also the fact that the wife of the plaintiff filed O.S.No.5 of 2005 for partition and possession of her share against her father and brothers, who are defendants herein. The trial Court also noted that the value of items 1 and 2 of the petition schedule was not mentioned in the petition or in the schedule and the trial Court was of the view that the property cannot be attached, as there is no presumption that the property belongs to the joint family and as no third party affidavits have been filed to show the genesis of the litigation or the source of information. The trial Court noted that the essential ingredients for invoking Order 38 Rule 5 of the Civil Procedure Code were not established and dismissed the petition. The plaintiff challenges the said order in this revision again referring to the background of the litigation and contending that there was no necessity to furnish the details of the earlier alienations. The plaintiff also contended that defendants 1 to 3 failed to furnish any security for the suit amount and also transferred the major portion of their properties prior to the suit. The intention of the defendants can be gathered from their conduct and he requested for safeguarding his interest by ordering attachment before judgment. There was an interim direction granted by this Court on 11.02.2008 not to alienate the properties for a period of four weeks only and thereafter there was no interim direction in force. The point for consideration is whether the plaintiff is entitled to seek attachment of the petition schedule properties before judgment. The remedy available to the plaintiff under Order 38 Rule 5 of the Code of Civil Procedure is so available only on proof of the intent of the defendant to obstruct or delay the execution of any decree that may be passed in any suit and the consequential acts by the defendants in attempting to dispose of the whole or any part of his property or to remove the same from the local limits of the jurisdiction of the trial Court. Even if such intent and attempt were proved or probablised, the Court should first direct the defendant to furnish security and it is only in default of furnishing such security that an attachment is ordered under the said Rule. Whether the defendant had such intent and made such attempt is a question of fact and decided on the facts and circumstances of each case. As noted in the impugned order, the source of information about the alleged attempts of the defendants to alienate the petition schedule properties was not stated and the interested claims of the plaintiff were not corroborated by any independent material like the affidavits of any third party or otherwise. The close relationship and the strained feelings between the parties leading to the present suit and another suit by the plaintiff’s wife for partition are not in dispute and the very fact that O.S.No.5 of 2005 filed by the wife of the plaintiff itself recognized the share of the defendants in the properties covered by that suit, may not prima facie indicate the defendants to be not in a position of discharging the debts and liabilities like the suit debt. The alleged debts and liabilities of the defendants and the alleged alienations made by them earlier were not probablised by any document, and during enquiry into the petition, no oral evidence was adduced and Exs.P.1 and P.2 certificates about the ownership of the properties by defendants 1 and 2 do not throw any light on the essential ingredients of Order 38 Rule 5 of the Code of Civil Procedure. The trial Court cannot be considered to be wrong in concluding that in the absence of proof of either an intention to dispose of the petition schedule properties or an intention to obstruct or delay the execution of a decree that may be passed, no attachment before judgment can be ordered and in the restricted revisional jurisdiction of this Court, the impugned order is, therefore, not susceptible to any interference. The Civil Revision Petition is accordingly dismissed without costs. ____________________ G. BHAVANI PRASAD, J Date: 15.07.2010 CBS HON’BLE SRI JUSTICE G. BHAVANI PRASAD C.R.P.No.5706 of 2007 (Dismissed) Date:15.07.2010 CBS HON’BLE SRI JUSTICE G. BHAVANI PRASAD CIVIL REVISION PETITION No.5706 of 2007 DATE:15.07.2010 Between: Gattu Sreedhar … Petitioner And Kukkadapu Buchaiah and others … Respondents