DUBBAKA PADMA Vs. BOLLAM NARAYANA

JUDGEMENT

(1.) Heard Sri D.V.Chalapathi Rao, learned counsel for petitioner/defendant no.2 and Sri S.Chalapathi Rao, learned counsel for respondent/plaintiff. The parties are referred as arrayed in the suit.

(2.) Plaintiff filed O.S.No.63 of 2016 on the file of Court of Senior Civil Judge at Jangaon, Warangal district, for recovery of money of 6,17,335/-. In the said suit, plaintiff filed I.A.No.280 of 2016 under Order XXXVIII Rule 5 read with Section 151 of Code of Civil Procedure (CPC) praying to order attachment before judgment the suit schedule mentioned property. By order dated 05.06.2017, Court below held plaintiff has shown prima facie case in his favor, allowed the I.A. and directing to the Bailiff of the Court. This order of attachment is under challenge in this revision by the 2nd defendant.

(3.) 3.1. Learned counsel for 2nd defendant contended that Order XXXVIII of CPC envisages detailed procedure to be followed to attach the property before judgment, whereas in the instant case, such procedure was not followed and straightaway the order was made and directions issued to the Bailiff under Order XXXVIII Rule 5 of CPC. No show-cause notice was issued and no opportunity was afforded before attaching the property. Thus, the order is vitiated on this ground alone. According to the learned counsel, as valuable right to enjoy the property is sought to be taken away, procedure as envisaged in Rule 5 of Order XXXVIII of CPC has to be strictly complied with and any order made in violation of the said procedure, is void and unenforceable.