(1.) This civil miscellaneous appeal under Order XLIII Rule l(q) of Code of Civil Procedure, 1908 (CPC) is by defendant in.O.S. No.73 of 2008 against the order dated 4.2.2009 whereby and whereunder the Court of I Additional District Judge, Rajahmundry, directed to issue warrant of attachment before judgment in I.A. No.1757 of 2008.
(2.) Respondent filed the suit for recovery of a sum of Rs.35,00,000/- from defendant, appellant herein. The suit was filed in September 2008 along with I.A. No.1757 of 2008 under Order XXXVIII Rules 5 and 6 of CPC for attachment of property of defendant before judgment. The trial Court ordered issue of notice on 22.1.2009 to appellant (hereafter, defendant). After receiving notice, he appeared through lawyer and sought time for filing counter. The counter was filed on 17.10.2008. Thereafter the matter was coming for enquiry. It was called on 22.10.2008, 30.10.2008, 5.11.2008, 21.11.2008, 5.12.2008 and on 31.12.2008. Every time, it appears that defendant appeared and sought time. Ultimately on 22.1.2009, trial Court ordered notice under Order XXXVIIl Rule 5 of CPC directing defendant to furnish security by 5.30 p.m. on 4.2.2009. The defendant did not appear. On 4.2.2009, the trial Court directed to issue warrant of attachment, aggrieved by which the present appeal is filed.
(3.) Learned Counsel for appellant/ defendant relies on Division Bench judgment of this Court in Y. Vijayalakshmamma v. M/s. Sakinala Lakshmaiah and sons, AIR 1980 AP 176 and a decision of apex Court in M/s. Raman Tech and Process Engg. Co. v. M/s. Solanki Traders, 2008 (2) SCJ 381 and submits that the impugned order without applying mind and without giving reasons is unsustainable. He also submits that the appellant filed counter on 17.10.2008 itself giving undertaking not to alienate the property sought to be attached and, therefore, the trial Court ought not to have passed order under Order XXXVIil Rule 6 of CPC. Per contra, learned Counsel for respondent relies on another Division Bench decision of this Court in Bommanasaree Mandir v. Manisha Sarees, AIR 2002 AP 66 = 2001 (4) ALT 780, in support of the submission that trial Court after providing adequate opportunity passed order and, therefore, it does not warrant interference.