2012 (12) TMI 1233 - HC - Indian Laws

Summary

Issues involved: Suit for recovery, application for attachment, failure to furnish security, legality of attachment order, compliance with Order XXXVIII Rule 5.

Summary:
The respondent/plaintiff filed a suit for recovery of a sum of Rs. 95,278/= and also applied for attachment of the property of the revision petitioner under Order XXXVIII Rule 5, alleging an attempt to alienate property to defeat creditors. The court directed the revision petitioner to furnish security, which was not done, leading to an order of attachment. The revision petitioner challenged this order.

The revision petitioner argued that the court passed a conditional order without proper consideration, citing a judgment in support. The respondent contended that the court had discretion under Order XXXVIII Rule 5 and acted appropriately based on the affidavit. The court noted a serious error in ordering attachment without proper appreciation of the affidavit.

Referring to legal precedents, the court highlighted the need for a prima facie opinion before ordering attachment. It emphasized that the power under Order XXXVIII Rule 5 is drastic and should not be used mechanically. The court found that the lower court erred in ordering attachment without forming a prima facie opinion and without considering the schedule of properties to be attached, which could adversely affect the business of the revision petitioner. The order of attachment was set aside, and the matter was remanded for further consideration.

In conclusion, the civil revision petition was allowed, no costs were imposed, and the connected miscellaneous petition was closed.