M RAVI Vs. R VASANTHAKUMARI

JUDGEMENT

(1.) This appeal is filed against the order dated 10.6.2002 in I.A.No.466 of 2002 in O.S.No.256 of 2002 on the file of the Sub Court, Karur.

(2.) The respondent herein instituted the suit in O.S.No.256 of 2002 against the appellant/second defendant and 10 others for recovery of a sum of Rs.59,66,100/- along with interest and costs. The parties are referred to as shown in the plaint. The plaintiff, who is the respondent herein, filed a petition under Order 38, Rule 5 of the Code of Civil Procedure against the second defendant/the appellant herein to direct the second defendant to furnish sufficient security for the suit claim within the time that may be specified by the Court and in default, the petition mentioned property may be ordered to be attached before judgment by the Court. The Subordinate Judge's Court, Karur, by order dated 30.5.2002, directed the second defendant to furnish security for the suit amount on or before 10.6.2002 and ordered notice. The second defendant did not challenge the order directing him to furnish security. The second defendant has also not filed any counter affidavit denying the averments made in the affidavit in support of the petition, I.A.No.466 of 2002. On the other hand, the second defendant filed vakalat and also furnished security. Learned Subordinate Judge found that three properties were given as security and the value of one of the properties as per the sale deed was Rs.1,68,100/- and the value given by the Village Administrative Officer in his valuation certificate was Rs.72,00,000/-. He was of the view that the value given by the Village Administrative Officer was on the high side. Learned Subordinate Judge found that the perusal of the encumbrance certificate showed that the name of the second defendant was not shown as the owner and other two sale deeds were executed in Kerala. In the circumstances, he held that the security was not furnished to the suit amount and hence, he ordered attachment of the petition mentioned property. It is against this order, the present appeal has been preferred.

(3.) Heard Mr.P.Valliappan, learned counsel for the appellant and Mr.N.Damodaran, learned counsel for the respondent. Mr.P.Valliappan, learned counsel for the petitioner submitted that the learned Subordinate Judge was not correct in passing the order of attachment. He also submitted that the order directing the second defendant to furnish security is not sustainable as the conditions prescribed under Order 38, Rule 5 of the Code of Civil Procedure are not satisfied. In support of his submissions, learned counsel relied upon number of decisions.