TMI Blog2012 (12) TMI 1233X X X X Extracts X X X X X X X X Extracts X X X X ..... ty Civil Court, Chennai directed the revision petitioner to furnish security for a sum of Rs. 95,278/= and ordered notice to the revision petitioner and adjourned the case to 30.11.2012. On 30.11.2012, the revision petitioner entered appearance by filing vakalat and as the security was not furnished, the properties mentioned in the schedule to the petition filed for attachment was ordered and aggrieved by the same, this revision is filed. 2. Learned counsel for the revision petitioner submitted that the court below mechanically passed a conditional order on 17.11.2012 directing the revision petitioner to furnish security without forming an opinion whether the respondent has made out a case for directing the revision petitioner to furnish ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and hence, the order of the court below need not be interfered with. He also relied upon the judgments in Rajendran and others v. Shankar Sundaram and others (AIR 2008 SC 1170 = 2008-2-L.W. 721) and Jayalakshmi, K. v. S.M. Muthiah (1989-1-LW 549) in support of his contention. 4. According to me, the court below has committed a serious error in ordering attachment without properly appreciating the averments made in the affidavit filed in support of attachment. 5. It is seen from the judgment reported in 1989 1 LW 549 that if the court is satisfied that the defendant is about to dispose of whole or part of its properties with the intent to obstruct or delay the execution of any decree that may be passed in the suit, the court is entitle ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be borne in mind. The expression used therein is 'conditional attachment' and that would mean that it is not absolute attachment but only in the nature of dependent attachment or an attachment which would enure and depend upon certain conditions, namely, the defendant appearing and showing cause or not. In other words, such conditional attachment would be operative during the interregnum or the intervening time. If it were not so, the defendant can, meanwhile, part with all his or her valuable properties, pending receipt of a notice under O.38, R. 5(1) C.P.C. and the Court as well as the plaintiff, who may be successful eventually, would be left helpless and high and dry and justice would be defeated, to prevent which the power of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the suit, in the appropriate form, namely, Form 7-A in Appendix-F. 6. In the judgment reported in AIR 2008 SC 1170 = 2008-2-L.W. 721, the Honourable Supreme Court held that before ordering attachment before judgment or before directing the defendant to furnish security, the court has to prima facie form an opinion that the defendant is about to dispose of his property with the intention of delaying or defeating the rights of the plaintiff. In the judgment reported in (2008) 2 MU 1058 (SC) = 2008 3 L.W. 744, it is held as follows:- The Scheme of Order 38 and the use of the words 'to obstruct or delay the execution of any decree that may be passed against him' in Rule 5 make it clear that before exercising the power under the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ettle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs, by obtaining orders of attachment before judgment and forcing the defendants for out of court settlements, under threat of attachment. 7. Bearing these principles in mind, we will have to see whether the court below was justified in passing an order directing the revision petitioner to furnish security without issuing show cause notice. The court below passed the order on 17.11.2012 calling upon the revision petitioner to furnish security as follows:- Heard petitioner side, records perused order pronounced. As per the averments contained in Para 9 of the affidavit of this petition. The petiti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tached in the event of failure to furnish security or the allegations that the revision petitioner is going to sell the schedule properties, the court below should not have passed the order directing the revision petitioner to furnish security. In the schedule of properties to be attached, the respondent/ plaintiff mentioned computers, air conditioner, furniture and stock-in-trade worth Rs. 95,278/=. The suit was filed for recovery of a sum of Rs. 95,278/= being the amount payable by the revision petitioner for the goods received from the respondent/plaintiff. In the affidavit filed in support of the petition for attachment, the respondent/plaintiff has only stated that the revision petitioner/defendant is intending to delay and defeat the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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