M SOMESWAR REDDY Vs. AJAY BHANU VANAMALI

JUDGEMENT

(1.) These civil revision petitions are filed by the revision petitioner/respondent/2nd defendant in the respective suits, aggrieved by the orders made in the applications moved by the respective plaintiffs under Order 38 Rule 5 read with Order 21 Rule 46 of C.P.C., praying for attachment before judgment by issuing prohibitory order to the garnishee. The 1st defendant as G.P. agent of the 2nd defendant filed all the suits as summary suits for recovery of the respective amounts on the strength of the suit promissory notes.

(2.) Sri A. Sudershan Reddy, learned counsel representing the petitioner/2nd defendant would point out that prima facie, these orders impugned in the C.R.Ps. cannot be sustained for the reason that even as per the case of the respective plaintiffs, the suit promissory notes were not executed by the petitioner/2nd defendant, butitwas pleaded that since the 1st defendant executed those promissory notes as G.P. agent, the 2nd defendant also is liable and on that ground, the applications had been filed praying for attachment before judgment. The learned counsel also would contend that when suits had been instituted by following the summary procedure under Order 37ofC.P.C. normally, order 38 Rule 5 of C.P.C. would not be invoked for the reason that special procedure relating to leave to defend had been specified under Order 37 C.P.C. the learned counsel also would contend that when special procedure had been specified under Order 37 of C.P.C., the general provision under Order 38 Rule 5 of C.P.C. cannot be followed. The learned counsel further submitted that no opportunity was given to furnish security and no conditional attachment as such was made and in the light of Order 38 Rules 4 and 5 of C.P.C., such an order is void and the same is liable to be set aside. The learned counsel also had contended that Order 21 Rule 46 of C.P.C. cannot be invoked, since the said provision is not applicable. The furnishing of security or otherwise, whether leave to be granted or a conditional leave to be granted to defend in the suit, these are all matters to be decided at the appropriate stage and definitely not at this stage. The learned counsel also pointed out that by virtue of this prohibitory order of attachment of cheques, the revision petitioner is unable to further execute his contract. The learned counsel also placed reliance on a decision reported in M/s.Industrial Associates, 3465, Rashtrapati Road, Secunderabad, Represented by its Proprietor Harikishan Ratava v. Mohammed Hussain.

(3.) On the contrary, Sri Meherchand Noori, learned counsel representing the 1st respondent/plaintiff in these revision petitions would contend that the plaintiff is only interested in realization of the amount and even in the event of obtaining a decree, since the plaintiff cannot be successful in realising the amount, these applications were moved praying for attachment before judgment. The learned counsel also would contend that no distinction can be drawn between a suit filed under summary procedure under Order 37 of C.P.C. and other ordinary suits for the purpose of invoking Order 38 Rule 5 of C.P.C. The learned counsel also would maintain that inasmuch as it is only an interim order, the petitioner could have approached the same Court instead of approaching this Court and normally this Court should be slow in interfering with such orders while exercising powers under Article 227 of the Constitution of India. The learned counsel placed reliance on a decision of the Supreme Court reported in Ouseph Mathai v. M.Abdul Khadir and Essen Deinkai v. Rajiv Kumar. The learned counsel also would contend that these revisions are pre-mature and at any rate, would submit that even at this stage, this Court can issue such directionsby permitting the petitioner to furnish security. The learned counsel placed reliance on a decision reported in Modem Mallikarjuna Rao v. Butti Bharathi and others. The learned counsel also had placed reliance on Surender Singh Bajaj v. M/s. Kitty Steels Ltd. and Southern Petrochemical Industrial Corporation Ltd. and others v. S.Rathish Khnna. While concluding, the learned counsel also submitted that while granting leave also, directions to deposit even the whole amount can be issued by the Courts in the suits filed under Summary Procedure and in this view of the matter, the interest of the plaintiff in these matters may have to be safeguarded. Reliance was placed on a decision reported in Director of Enforcement v. Fr. J.M. Stevens.