N KAILASAM Vs. K RAJESH

JUDGEMENT

(1.) THIS Civil Revision Petition is filed by the petitioner (party in person), who is the 2nd defendant in the suit to revoke the order of attachment dated 3.6.2008 made in IA.No.248/2009 in OS.No.48/2009 on the file of the Additional District Judge, Trichirappalli.

(2.) THE respondent/plaintiff, who is the son of the petitioner/the 2nd defendant, has filed the above said suit for partition against the petitioner and his daughter. Pending the suit, the respondent has filed an application in IA.No.248/2009 for passing an order of attachment of a sum of Rs.30,87,333/- in the hands of the garnishee/Bank in the name of the petitioner by way of deposit in the Savings Bank Account No.152248 till the disposal of the suit. In the affidavit filed in support of the said application, it is averred by the respondent that the petitioner had received the sale consideration of three sales executed by him on behalf of the family members and thus in possession of the joint family funds to the tune of Rs.92,62,000/- and as a co- owner, he is entitled to Rs.30,87,333/- in the joint family funds deposited by the petitioner in the Srirangam Branch of City Union Bank. He has sought for attachment before judgement on the ground that the petitioner is likely to withdraw the entire amount in order to defeat the claim of the respondent.

(3.) MS.N.Krishnaveni, the learned counsel for the respondent would support the order passed by the court below on the ground that it is not an order of attachment, but only an interim direction not to disburse the amount lying in the Bank in order to protect the interest of the respondent who is entitled to the said amount towards his share and therefore, non compliance of the provisions under Order 38 Rule 5(1) of CPC is of no effect and does not vitiate the impugned order. The learned counsel drew the attention of this court to the observations made by the Honourable Supreme Court rendered in the case of Rajendran and others Vs. Shankar Sundaram and others [2008-2-LW-721], wherein it is held that the court while exercising its jurisdiction under Order 38 Rule 5(1) of CPC is required to form a prima facie opinion at that stage and it need not go into the correctness or otherwise of all the contentions raised by the parties. It has further observed that as the other party is directed to furnish security only, he may not be seriously prejudiced.