IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED : 14.10.2008 CORAM: THE HON'BLE MR. JUSTICE V. PERIYA KARUPPIAH C.R.P.(PD) No.2174 of 2008 Narayanamoorthi ... Revision Petitioner/ Defendant Vs. Sathish Kumar ... Respondent/Plaintiff Civil Revision Petition is filed under Article 227 of the Constitution of India, praying to set aside the order 12.03.2008 made in I.A.No.301 of 2007 in I.A.No.71 of 2007 in O.S.22 of 2007 on the file of Sub Court, Udumalaipettai. For Revision Petitioner : M/s.V.Manisekaran For Respondent : Mr.K.Kalyanasundaram ORDER This Civil Revision Petition has been filed by the defendant against the order dated 12.03.2008 made in I.A.No.301 of 2007 in I.A.No.71 of 2007 in O.S.22 of 2007 on the file of Sub Court, Udumalaipettai dismissing the application filed by the petitioner herein to set aside the ex parte order of attachment dated 05.04.2007 passed against him in I.A.No.71 of 2007. 2. The brief facts of the case of the parties before the trial Court are as follows:- (a) According to the defendant, when the case was posted on 05.04.2007 for furnishing security bond, he could not able to attend the court as he was physically ill. After recovery, when he approached his counsel , he was given to understand that he was set ex parte and the case was posted for attachment and he was advised to file an application to set aside the ex parte order of attachment. The failure on his part to attend the Court is neither wilful nor wanton, but due to his illness. Hence, this petition. https://hcservices.ecourts.gov.in/hcservices/ (b) According to the plaintiff, on 05.04.2007 the defendant failed to attend the Court and there is no explanation in the affidavit as to the delay of 22 days in approaching the Court. The defendant suppressing the order dismissal of application dated 06.09.2007 made in I.A.No.145 of 2007 filed for restoration of application, approached this Court and therefore, the petition is liable to be dismissed. 3. The trial Court after having considered the submissions made on either side, dismissed the application filed by the petitioner praying to set aside the ex parte order of attachment dated 05.04.2007 made in I.A.No.71 of 2007 against the petitioner/defendant. Challenging the above said order, the petitioner/defendant has preferred this Civil Revision Petition. 4. Heard both Mr.V.Manisekaran, learned counsel appearing for the revision petitioner and Mr.K.Kalyanasundaram, learned counsel appearing for the respondent. 5. The learned counsel appearing for the revision petitioner would submit that the petitioner was the defendant in the suit and respondent in application I.A.No.71 of 2007 filed by the plaintiff under Order 38, Rule 5 of CPC for attachment of the suit property. On 05.04.2007, the defendant was set ex parte in the attachment application and an order of attachment was made. The said order of attachment before Judgment was not in conformity with the procedures envisaged under Order 38, Rule 5 of CPC and the reasoning given by the trial Court refusing to raise or to set aside the ex parte order of attachment made against the petitioner that he has not even furnished the security at the time of seeking an order setting aside the exparte order of attachment passed against him was flimsy; whereas the petitioner/defendant had already produced the security bond along with the said application to set aside the ex parte order. He would further submit that the trial Court ought to have called for security from the defendant, who was the respondent in the said application filed for attachment before judgment and only on his failure to furnish security, it ought to have made the order of attachment. But, the trial Court without resorting to call for security, made the order of attachment against the petitioner herein which is contrary to the provisions. The trial Court ought to have set aside the ex parte order and raised the attachment. Therefore, the learned counsel would stress for setting aside the order passed by the trial Court by allowing this revision petition. 6. The learned counsel for the respondent/plaintiff would, on the other hand submit that the trial Court was right in dismissing the application to set aside the ex parte order of https://hcservices.ecourts.gov.in/hcservices/ attachment since the petitioner/defendant did not produce sufficient security along with the said application and the order of the trial Court is clear that there was no security furnished even at the time of filing application to set aside the ex parte order and the trial Court had followed the due procedures as contemplated under Order 38, Rule 5 of the Code of Civil Procedure. Therefore, the impugned order needs no interference of this Court. 7. I have given my anxious consideration on the submissions made on either side. On a careful perusal of the papers submitted before this Court, it could be seen that the respondent/plaintiff had filed the application in I.A.No.71 of 2007 for attachment before Judgment under Order 38 Rule 5 of Code of Civil Procedure, in respect of the suit property mentioned thereunder. On 14.03.2007 the trial Court had ordered notice to the respondent through Court and Post for the hearing dated 23.03.2007. Subsequently, batta memo was returned and on 23.03.2007 again batta was filed and the matter was posted to 05.04.2007. The notice was served upon the respondent (petitioner herein) and on 05.04.2007, he was called absent, no representation and he was set ex parte and an order of attachment was made and the case was posted to 23.04.2007. Thereafter, the attachment batta was not paid. On 25.04.2007 attachment was again ordered. It is seen from the petition in I.A.No.71 of 2007 that yet another I.A.No.145 of 2007 was pending and the same was dismissed on 06.07.2007. Even thereafter, attachment batta was not paid. On 14.08.2007, application in I.A.No.301 of 2007 to set aside the ex parte order was filed and pending. There were several adjournments in the above said application and the same was finally dismissed on 12.03.2008 and on the same day, attachment was again ordered. For appreciating the order passed by the trial Court it has become necessary to extract the relevant provisions made under Order 38, Rule 5 of the Code of Civil Procedure :- 5. 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 https://hcservices.ecourts.gov.in/hcservices/ 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.] 8. According to the said provisions, the trial Court ought to have satisfied before passing the order of attachment that the defendant is about to dispose the whole or any part of his property or is about to remove whole or any part of his property from the local limits of the jurisdiction of the Court, through affidavit and thereafter directed the defendant within a time to be fixed by Court either to furnish security in such sum as may be satisfied in the order to produce and place at disposal of the Court in order to satisfy the decree to be passed against him. All these pre-conditions for attachment before judgment are necessary and the attachment made without complying with the provisions of sub Rule (1) shall be void as per Sub Rule (4) to Order 38 , Rule-5 of CPC. On a careful perusal of the order dated 14.03.2007 made by the trial Court in I.A.No. 71 of 2007, it had not been mentioned that it was satisfied with the averments made in the affidavit about the disposal or removal of the scheduled mentioned property belonging to the defendant and thereafter ordered calling for security and notice. But the trial Court had simply ordered notice and on completion of service of notice for the hearing dated 05.04.2007, the trial Court set the https://hcservices.ecourts.gov.in/hcservices/ defendant (petitioner herein) ex parte and simply ordered attachment of the suit property before Judgment. The trial Court had also not mentioned in its order that the security was called for and was not furnished by the defendant and therefore attachment order was passed against him in respect of the suit property. The above said order of the trial Court is exfacie not in accordance with procedures laid down under Order 38, Rule 5 of CPC. 9. An application in I.A.No.301 of 2007 was filed by the defendant to set aside the exparte order along with security bond. The certified copy of the security bond produced into the Court is now filed along with the typed set of papers. The order dated 12.03.2008 passed by the trial Court does not mention any reference about the security. On the other hand, it was commented by the trial Court that the petitioner did not come forward to furnish security or to raise any objection to the order of attachment. The order passed by the trial Court is exfacie against the procedure and to the facts and circumstances of the case. The trial Court ought to have set aside the exparte order and given an opportunity to the defendant to furnish correct security even if it considers that the security furnished by the defendant is insufficient security. No date has been fixed by the trial Court for furnishing security, while ordering notice on 12.03.2007. In these circumstances, the original order of attachment passed by the trial Court on 05.04.2007 itself is contrary to the provisions laid down under sub Rule (1) of Order 38, Rule 5 of CPC and therefore, the said order is vitiated under Sub Rule (4) of Order 38, Rule 5 of CPC. In the aforesaid circumstances, the ex parte order dated 05.04.2007 made in I.A.No.71 of 2007 ought to have been set aside by the trial Court in I.A.No.301 of 2007 filed by the revision petitioner herein whereas the trial Court again committed error by dismissing the application filed by the petitioner herein to set aside the ex parte order of attachment dated 05.04.2007. The reasons stated by the trial Court in the impugned order dated 12.03.2008 is contrary to the procedures and also to the facts and circumstances of the case. Therefore, the impugned order is liable to be set aside and civil revision succeeds accordingly. 10. In fine, the order of the trial Court dated 12.03.2008 made in I.A.No.301 of 2007 is set aside thereby raising the order of ex parte order of attachment before judgment dated 05.04.2007. The trial Court is directed to follow the procedures envisaged https://hcservices.ecourts.gov.in/hcservices/ under Order 38, Rule 5 of CPC scrupulously in future. With the above said directions, the civil revision petition is ordered. No costs. Consequently, connected miscellaneous petition is closed. kmk Sd/- Assistant Registrar / True Copy / Sub. Assistant Registrar To The Sub Judge, Udumalaipettai. 1 cc to Mr.V.Manisekaran, Advocate, SR.57113 1 cc to M/s.K.Kalyanasundaram, Advocate, SR.57535 ksk (co) dv/30.10. C.R.P.(PD) No. 2174 of 2008 https://hcservices.ecourts.gov.in/hcservices/