V C SASIDHARAN Vs. CHENTHAMARA

JUDGEMENT

(1.) THIS appeal against the order of interim attachment, arises in the following circumstances. The respondent filed O. S. No. 6116of 1991 for recovery of a sum of Rs. 59,820 said to be due on promissory note. Even in the plaint, the respondent admitted that the defendant had deposited his title deeds relating to his property bearing Plot No. 9 though it is wrongly typed as no. 8, Thailammal Kamakshi Nagar in Puliyur Village, Egmore-Nungambakka m Taluk. In para. 6 of the plaint it is stated that though the plaintiff is entitled to file a suit on the equitable mortgage, he is filing the suit only as one on promissory note. Nothing is stated in the plaint as to why the plaintiff is not proceeding against the security. Nor is it stated in the plaint that the plaintiff is giving up the security. Even in the cause of action paragraph, a reference is made to the deposit of title deeds.

(2.) ALONG with the plaint, the plaintiff filed i. A. No. l4617 of 1991 for attachment of property which was already given to him as security under equitable mortgage. The court passed an order on 4. 9. 1991 directing notice to the defendant and also directing him to furnish security by 17. 9. 1991. That order is wholly unsustainable in view of the fact that the plaintiff has admitted in his plaint that the property had been given to him as security by way of equitable mortgage by deposit of title deeds. The order shows that the court has not applied its mind to the facts of the case. It is the general complaint from the Bar that on applica-tion s for attachment of property, the courts do not at all apply their minds and they grant orders automatically as if it is a matter of course. This Court has repeatedly drawn the attention of the Subordinate Judiciary to the provisions of O. 38, Rule 5, C. P.C. and pointed out that orders of interim attachment shall not be passed as a matter of course.