C. BHASKAR NAIDU Vs. SANTHOSH SRINIVASULU SIDDAM SETTY
LAWS(KAR)-2022-6-699
HIGH COURT OF KARNATAKA
Decided on June 27,2022

C. Bhaskar Naidu Appellant
VERSUS
Santhosh Srinivasulu Siddam Setty Respondents


Referred Judgements :-

PALGHAT ROLLING MILLS (P) LTD. VS. VISVESWARAYYA IRON AND STEEL LTD [REFERRED TO]


JUDGEMENT

R.DEVDAS,J. - (1.)The petitioner is the defendant before the trial Court in O.S. No. 95/2021 on the file of the learned Prl. Sr. Civil Judge & JMFC, Hosapete. The petitioner is aggrieved by the impugned order dtd. 7/1/2022 passed on I.A. No. 2 filed at the hands of the respondent-plaintiff under Order XXXVIII Rule 5 r/w Sec. 151 CPC, seeking conditional attachment before judgment of the land described in the schedule to the application and to call upon the defendant to furnish security, in the interest of justice.
(2.)Learned counsel for the petitioner has drawn attention of this Court to the provisions contained in Rule 5 of Order XXXVIII and submits that a plain reading of the provision makes it very clear that when such an application is made and the Court is satisfied that the defendant, with intent to obstruct or delay execution of any decree, is about to dispose of the whole or any part of his property, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, any 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.
(3.)The learned counsel would therefore submit that in the impugned order, the trial Court has not specified the sum to be secured and has not fixed the time to furnish bank guarantee. Moreover, the learned counsel would point out to Sub Rule (4) which expressly provides that if an order of attachment is made without complying with the provision of Sub Rule (1), such attachment would be void. The learned counsel would also place reliance on a judgment of this Court in the case of Palghat Rolling Mills (P) Ltd. Vs. Visveswarayya Iron and Steel Ltd. (ILR 1995 KAR 3983) and submits that while analyzing the provision contained in Order XXXVIII Rule 5 CPC, this Court has held that mere mentioning of the apprehension in the affidavit is not sufficient to hold that the defendant is intending to dispose of the properties with a view to obstruct or cause delay in the execution of the decree which may be passed against him. It was held that the affidavit must state the source of the information or apprehension. Unless the source is disclosed the Court should not hasten to pass an order under Order XXXVIII Rule 5 CPC. It was therefore held that since the affidavit did not meet the mandatory requirements of Order XXXVIII Rule 5 CPC, therefore the Court could not have passed an order of attachment before judgment.


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