SUBBAIAH THEVAR Vs. ARUNACHALAM

JUDGEMENT

(1.) This civil revision petition is filed by the defendant against the order passed in LA. No. 110 of 2007 in O.S. No. 86 of 2006 dated 10.7.2007 by the learned Principal Sub Judge Court, Tenkasi, refusing to raise attachment in respect of the item (1) of the schedule mentioned property except Plot Nos. 6 and 7, which measures approximately 6 cents and the market value of the said plots being more than Rs. 3 lakhs.

(2.) The respondent/plaintiff had filed the above said suit for recovery of a sum of Rs. 1,71,933/- with future interest and cost thereon. He had filed an application in I.A. No. 197 of 2006, seeking for attachment before judgement relating to Items (1) and (2) of the properties mentioned in the schedule to the petition. Item (1) measures 42 cents and Item (2) measures 54 cents. There is no doubt that the item (1) of the properties has been divided into house plots, each plot measuring 3 cents. According to the petitioner, the market value of each plot is Rs. 1,50,000/-. So, the petitioner would plead that the market value of the two plots would be sufficient for discharge of the entire amount and therefore, the petitioner sought for raising of attachment, as regards the other plots in Items (1) and (2) of the schedule mentioned properties. The Court below refused to raise attachment on the ground that no objection was raised by the petitioner, when 12 cents out of 54 cents in item (1) of the property was raised from attachment and that the plaintiff would be put to irreparable loss and hardship.

(3.) A bare perusal of the Order 38 Rule 9 of C.P.C. shows that it is a beneficial provision intended to give an opportunity to the defendant, whose assets have been attached before judgement, but who is in a position to offer security for safeguarding the plaintiff s claim. In the instant case, the petitioner prays for raising of the attachment with regard to the items (1) and (2) of the schedule mentioned properties, except Plot nos.6 and 7 on the ground that they are sufficient for discharge of the entire amount. Item (1) of the property has been divided into 11 house plots and the petitioner has sold 12 cents out of the total extent of 54 cents for a sale consideration of Rs. 2,06,072/- and those plots of 12 cents have been ordered to be raised from the attachment. In the said view of the facts, apart from Plot Nos.6 and 7 as suggested by the petitioner, Plot No. 5 could also be set apart towards the security of the debt amount and it is not in dispute that the market value of Plot Nos. 5, 6, and 7 would be sufficient for discharge of the entire liability.