NARAYANAMOORTHI Vs. SATHISH KUMAR

JUDGEMENT

(1.) THIS Civil Revision Petition has been filed by the defendant against the order dated 12.03.2008 made in I.A.No.301 of 2007 in I.A.No.71 of 2007 in O.S.22 of 2007 on the file of Sub Court, Udumalaipettai dismissing the application filed by the petitioner herein to set aside the ex parte order of attachment dated 05.04.2007 passed against him in I.A.No.71 of 2007.

(2.) THE brief facts of the case of the parties before the trial Court are as follows:-(a) According to the defendant, when the case was posted on 05.04.2007 for furnishing security bond, he could not able to attend the court as he was physically ill. After recovery, when he approached his counsel, he was given to understand that he was set ex parte and the case was posted for attachment and he was advised to file an application to set aside the ex parte order of attachment. THE failure on his part to attend the Court is neither wilful nor wanton, but due to his illness. Hence, this petition.(b) According to the plaintiff, on 05.04.2007 the defendant failed to attend the Court and there is no explanation in the affidavit as to the delay of 22 days in approaching the Court. THE defendant suppressing the order dismissal of application dated 06.09.2007 made in I.A.No.145 of 2007 filed for restoration of application, approached this Court and therefore, the petition is liable to be dismissed.

(3.) THE learned counsel appearing for the revision petitioner would submit that the petitioner was the defendant in the suit and respondent in application I.A.No.71 of 2007 filed by the plaintiff under Order 38, Rule 5 of CPC for attachment of the suit property. On 05.04.2007, the defendant was set ex parte in the attachment application and an order of attachment was made. THE said order of attachment before Judgment was not in conformity with the procedures envisaged under Order 38, Rule 5 of CPC and the reasoning given by the trial Court refusing to raise or to set aside the ex parte order of attachment made against the petitioner that he has not even furnished the security at the time of seeking an order setting aside the exparte order of attachment passed against him was flimsy whereas the petitioner/defendant had already produced the security bond along with the said application to set aside the ex parte order. He would further submit that the trial Court ought to have called for security from the defendant, who was the respondent in the said application filed for attachment before judgment and only on his failure to furnish security, it ought to have made the order of attachment. But, the trial Court without resorting to call for security, made the order of attachment against the petitioner herein which is contrary to the provisions. THE trial Court ought to have set aside the ex parte order and raised the attachment. THErefore, the learned counsel would stress for setting aside the order passed by the trial Court by allowing this revision petition.