1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 09.12.2011 CORAM THE HONOURABLE MR.JUSTICE A.SELVAM CIVIL REVISION PETITION (PD)(MD) No.2297 of 2011 and MISCELLANEOUS PETITION (MD) Nos.1 and 2 of 2011 Madhusoodhanan .. Petitioner / Plaintiff Vs. Umair Banu .. Respondent / Defendant Civil Revision Petition has been filed under Article 227 of the Constitution of India against the fair and decretal order dated 13.10.2011 passed in Interlocutory Application No.27 of 2011 in Original Suit No.6 of 2011 by the Sub Court, Kuzhithurai. For Petitioner : M/s.J.Anandhavalli ORDER This Civil Revision Petition has been directed against the order 13.10.2011 passed in Interlocutory Application No.27 of 2011 in Original Suit No.6 of 2011 by the Sub Court, Kuzhithurai. 2. The revision petitioner herein as petitioner has filed Original Suit No.6 of 2011 on the file of the Court below praying to pass a money decree, wherein the present respondent has been shown as sole defendant. During pendency of the same, the present petition has been filed under Order XXXVIII, Rule 5 of the Code of Civil Procedure, 1908 praying to order attachment before Judgment. The Court below has dismissed the same. Against the dismissal order, the present Civil Revision Petition has been preferred at the instance of the petitioner/ plaintiff as revision petitioner. 3. Considering the nature of the order passed by the Court below in Interlocutory Application No.27 of 2011, notice need not be sent to the respondent and this Civil Revision Petition is disposed of on merits at the stage of admission on the basis of the contentions putforth on the side of the revision petitioner. 4. The learned counsel appearing for the revision petitioner has contended that Original Suit No.6 of 2011 has been instituted for getting a money decree on the basis of a pro-note executed by the respondent/defendant and now the respondent/defendant has been making arrangements to create encumbrance with regard to the property mentioned in Interlocutory Application No.27 of 2011 and under the said circumstances order of attachment before Judgment has been sought for, but the Court below without considering even the undertaking given by the respondent in the counter, has erroneously dismissed the petition and therefore the order passed by the Court https://hcservices.ecourts.gov.in/hcservices/ 2 below is liable to be interfered with. 5. It is seen from the records that Original Suit No.6 of 2011 has been instituted on the basis of a pro-note alleged to have been executed by the respondent/defendant. The present petition has been filed under Order XXXVIII, Rule 5 of the Code of Civil Procedure, 1908 praying to pass an order of attachment before Judgment. On the side of the respondent/defendant, a detailed counter has been filed, wherein at paragraph No.7, it has been specifically stated that the respondent/defendant has given undertaking to the effect that she would not create any encumbrance. 6. As stated earlier, the present petition has been filed under Order XXXVIII, Rule 5 of the Code of Civil Procedure, 1908 stating that the respondent/defendant is going to create encumbrance with regard to the property mentioned therein. Considering the fact that the present petition has been filed under Order XXXVIII, Rule 5 of the Code of Civil Procedure, 1908, the Court below is bound to pass suitable order on merits on the basis of relevant provisions of law. But the Court below has not at all considered the relevant provisions of law and therefore the order passed by the Court below is liable to be set aside and the matter is liable to be remitted to the file of the Court below with a specific direction to dispose of Interlocutory Application No.27 of 2011 on the basis of relevant provisions of law. 7. In fine, this Civil Revision Petition is allowed without costs at the stage of admission and the order passed in Interlocutory Application No.27 of 2011 in Original Suit No.6 of 2011 by the Sub Court, Kuzhithurai is set aside and the petition filed in Interlocutory Application No.27 of 2011 in Original Suit No.6 of 2011 is remitted to the file of the Sub Court, Kuzhithurai. The Sub Court, Kuzhithurai is directed to pass order on merits on the basis of relevant provisions of law and also on the basis of the rival contentions putforth on either side. Consequently, connected Miscellaneous Petitions are closed. Sd/- Assistant Registrar(A.S.) /True Copy/ Sub Assistant Registrar To The Subordinate Judge, Kuzhithurai. C.R.P(PD)(MD)No.2297 of 2011 and M.P(MD)Nos.1 and 2 of 2011 09.12.2011 smn/sma/28.12.2011/2c/2p https://hcservices.ecourts.gov.in/hcservices/