P RAMASWAMY Vs. DHANDAYUTHAPANI FINANCE SANKARI

JUDGEMENT

(1.) DEFENDANT is the petitioner. Plaintiff filed O. S. 41 of 1986 on the file of the Sub Court , sankari, based on a promissory note, dated 3rd December, 1985 for Rs. 50,000 executed by defendant in favour of plaintiff. Pending disposal of the suit i. A. 174 of 1986 was filed under Or. 38, R. 5 read with Sec. 151, C. P. C. , for attachment to be executed before judgment of Ashok Leyland lorry as described in the schedule, and which belongs to defendant.

(2.) IN the supporting affidavit, it was claimed that in spite of repeated demands, the amount had not been paid, and as the lorry owner is heavily indebted to several persons, and with a view to defraud the plaintiff, defendant was making arrangements to sell the said lorry to one palani-sami about' ; which he had come to know through one Sengoda Gounder, and as such, attachment before judgment of the property mentioned in the petition has to be ordered if the respondent fails, to furnish proper security after notice to the respondent. Otherwise, the petitioner will, be put to serious loss and hardship. Therefore, he has asked for an order of attachment before judgment by issuing notice to the respondent for furnishing property security.

(3.) THE next point is, whether the other requirements of rule 5 have been followed or not. Once the satisfaction required in the earlier part of Rule 5 (1) is satisfied, under the latter part, the Court may direct the defendant by fixing a date within which either to furnish security as specified in the order to produce and place at the disposal of the Court when required the said property or the value of it, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. Hence, it is open to the Court either to ask for security coupled with production of the property or to remit its value or such portion of the decree as may be found reasonable, and if not, to issue notice to defendant to appear and show cause as to why he should not furnish security. Hence, it is for the Court, either to ask for earlier part of the requirements or to direct defendant to appear for showing cause relating to furnishing of security. Plaintiff himself had asked for issue of notice, as a first requirement, before attachment could be effected. But before even defendant is heard by Court about furnishing of security, the order of the Court below had gone beyond the pleas of plaintiff by imposing a default clause resulting in attachment being effected. It is stated' ; that,' ; on the date on which the bailiff served the notice in form 5 in Appendix F, he had straightway attached the lorry and had not even produced it before Court, but left it strangely with the plaintiff, which is another irregularity committed in carrying out the order. Under Rule 5 (4), if the requirements of Rule 5 (1) are not complied with, there is no alternative left than to hold that such an attachment is void. 7. Mr. Somasundaram, learned counsel for the plaintiff, would first claim that the order as passed being only an interim order (though not properly worded), the revision would not lie. In Vasu v. Narayanan, A. I. R. 1962 Ker. 261, under similar situation, it was held that when power is conferred on a High Court, under Sec. 115, C. P. C. , to call for records of a subordinate Court in which no appeal lies to it, existence of an appeal to another subordinate Court would not oust the power of revision to entertain such matters.