MUPPALLA SAMBASIVA RAO Vs. VEMULA TIRUPATHI VENKAIAH

JUDGEMENT

(1.) The present Revision Petition is filed aggrieved by an Order dtd. 29/12/2021 in I.A. No. 718 of 2021 in O.S. No. 356 of 2021 on the file of the Principal Junior Civil Judge, Macherla, Guntur District.

(2.) The petitioner herein is the defendant in the above said suit. The respondent/plaintiff filed the suit against the petitioner/defendant seeking a Decree for Rs.18,96,000.00 together with interest, inter alia, on the premise that the petitioner/defendant borrowed an amount of Rs.15,00,000.00 for his business purposes and failed to repay the same. Along with the suit, the respondent/plaintiff filed an application under Order XXXVIII, Rule 5 of the Code of Civil Procedure, seeking to attach the petition schedule property before Judgment, if the defendant failed to furnish security for the suit amount. The petitioner/defendant filed counter to the said application and contested the matter. The learned Trial Court after formulating the point for consideration, as to whether the plaintiff is entitled to make the conditional attachment of the schedule property absolute or whether the respondent/defendant is entitled to raise the attachment, passed an Order dtd. 29/12/2021, the relevant portion of which reads as follows:-

(3.) The learned counsel for the petitioner, while referring to the various grounds set out in the Revision Petition, advanced arguments on several legal and factual aspects to contend that the order under Revision is wholly unsustainable. It is his submission that even prior to passing of the Order of attachment, the petition schedule property was gifted by the petitioner to his wife and the Gift Deed was presented before the Sub-Registrar's office, Guntur on 20/11/2021 and the same was registered on 25/11/2021 and in the meanwhile, the interim attachment Order dtd. 22/11/2021 was passed without following the procedure contemplated under Order XXXVIII, Rule 5 of CPC. He contends that though the Gift Deed was registered on 25/11/2021, since the same was presented before the concerned Sub-Registrar on 20/11/2021 before passing of the interim attachment Order dtd. 22/11/2021, the said order would not have any binding effect. The learned counsel in this regard places reliance on the Judgment of the Hon'ble Supreme Court in Hamda Ammal vs. Avadiappa Pathar and 3 others (1999) 1 SCC 715. The learned counsel also made other submissions with reference to infirmities/non-adherence to the requirements under Order XXXVIII, Rule 5 of CPC before passing/ordering conditional attachment and contends that the Revision Petition deserves to be allowed.