Order XXXVIII Rule 5 C.P.C, it is obligatory for the Court to issue a notice before directing attachment. - it is a relief which has to be granted in exceptional cases and in specified circumstances contemplated by Order XXXVIII Rule 5(1) C.P.C.
A party to the suit, namely, the plaintiff cannot as a matter of right insist that there shall be invariably an order to attach the property or the movables, which the party claims being the security or the subject matter of the petition.
Even otherwise, it is a relief which has to be granted in exceptional cases and in specified circumstances contemplated by Order XXXVIII Rule 5(1) C.P.C. It cannot be ordered as a matter of course.
When the trial court has exercised its discretion in this context, to issue a notice to the respondent before directing attachment, it cannot be found fault with any manner. Nor the order under revision can be subjected to any process in terms of Article 227 of the Constitution of India much less in terms of Section 115 C.P.C.
AP HIIGH COURT
| CRP/948/2020 | TADI VENKATA REDDY |
THE HON’BLE SRI JUSTICE M.VENKATA RAMANA
C.R.P.NO.948 OF 2020
ORDER:-
Heard Sri T.V.Jaggi Reddy, learned counsel for the revision
petitioner.
2. The impugned order in this Civil Revision Petition is with
reference to issuing urgent notice to the respondent in a petition filed
under Order XXXVIII Rule 5 read with 151 C.P.C. in I.A.No.141 of
2020 in O.S.No.57 of 2020 on the file of the court of learned Junior
Civil Judge, Anaparthy, East Godavari District.
3. The petitioner instituted a money claim against the respondent
for recovery of Rs.6,85,250/- on the foot of a promissory note. The
above petition was filed for attachment of a part of terminal benefits
payable to the respondent upon his retirement mainly constituted by
arrears of salary and leave salary, in all Rs.6,00,000/-.
4. Sri T.V.Jaggi Reddy, learned counsel for the petitioner, now
contends that issuance of notice, without directing attachment of the
above amounts, by the trial court is not proper and if these amounts
are not attached before judgment, the petitioner would not have any
security to realize the suit amount in future in case a decree is passed
in his favour.
5. In terms of Order XXXVIII Rule 5 C.P.C, it is obligatory for the
Court to issue a notice before directing attachment. A party to the suit,
namely, the plaintiff cannot as a matter of right insist that there shall
be invariably an order to attach the property or the movables, which
the party claims being the security or the subject matter of the
petition. Even otherwise, it is a relief which has to be granted in
exceptional cases and in specified circumstances contemplated by
2
Order XXXVIII Rule 5(1) C.P.C. It cannot be ordered as a matter of
course.
6. When the trial court has exercised its discretion in this context,
to issue a notice to the respondent before directing attachment, it
cannot be found fault with any manner. Nor the order under revision
can be subjected to any process in terms of Article 227 of the
Constitution of India much less in terms of Section 115 C.P.C.
7. Thus, the Civil Revision Petition has filed is not maintainable, in
given facts and circumstances of the case. Hence, it has to be
rejected.
In the result, the Civil Revision Petition is dismissed as not
maintainable. The trial court shall consider the application before it for
attachment unmindful of the nature of this order and shall decide on
merits. No costs. Miscellaneous Petitions pending, if any, shall stand
closed in consequence.
___________________
M.VENKATA RAMANA,J
24th JUNE, 2020
TSNR
