Order 38 Rule 5 C.P.C. = Normal rule should be to issue notice to the defendant requiring him to explain as to why he be not required to furnish security or suffer an order of attachment before judgment.- but not direct to furnish with in time - any order directly directing to furnish security is liable to be set aside = PETITIONER RESPONDENT PARISAPOGU YOBU & SMT. PARISAPOGU VS M.VENKATESHWAR REDDY = Published in http://hc.ap.nic.in/csis/MainInfo.jsp?mtype=CMA&mno=418&year=2013

Order 38 Rule 5 C.P.C. = Normal rule should be to issue notice to the defendant requiring him to explain as to why he be not required to furnish security or suffer an order of attachment before judgment.- but not direct to furnish with in time  - any order directly directing to furnish security is liable to be set aside =
The respondents have also filed I.A.No.891 of 2013 under Order 38 Rule 5 C.P.C. with a prayer to direct attachment of the schedule property before judgment. The trial Court passed an ex parte ad interim order on 26.04.2013 requiring the petitioner to furnish security for a sum of Rs.15,00,000/- within 48 hours and that if he fails to do so, the attachment shall come into existence.  The said order is challenged in this appeal. =

It is no doubt true that it is competent for a civil Court to pass an ex parte ad interim order directing attachment before judgment, if the facts and circumstances warrant.  Normal rule should be to issue notice to the defendant requiring him to explain as to why he be not required to furnish security or suffer an order of attachment before judgment.  The order passed by the trial Court virtually proceeds on the assumption that the appellant is under obligation to furnish security.  The finding in this regard needs to be arrived at after hearing the parties.
Hence, the appeal is allowed and the order under appeal is set aside.
CMA 418 / 2013

CMASR 19174 / 2013
PETITIONERRESPONDENT
PARISAPOGU YOBU & SMT. PARISAPOGU  VSM.VENKATESHWAR REDDY
PET.ADV. : SIVALENKA RAMACHANDRA PRASADRESP.ADV. : PEDDA BABU
THE HON’BLE SRI JUSTICE L. NARASIMHA REDDY
AND
THE HON’BLE SRI JUSTICE S.V. BHATT

C.M.A. No.418 of 2013


JUDGMENT: (per the Hon’ble Sri Justice L.Narasimha Reddy)
                                                                            

The respondent filed O.S.No.532 of 2013 in the Court of the Special Judge for Trial of SC & ST (POA) Act, Ranga Reddy District at L.B.Nagar against the appellants for recovery of a sum of Rs.15,00,000/-.  The amount is referable to a transaction of sale of land between the parties.  The respondents have also filed I.A.No.891 of 2013 under Order 38 Rule 5 C.P.C. with a prayer to direct attachment of the schedule property before judgment. The trial Court passed an ex parte ad interim order on 26.04.2013 requiring the petitioner to furnish security for a sum of Rs.15,00,000/- within 48 hours and that if he fails to do so, the attachment shall come into existence.  The said order is challenged in this appeal.
Heard Sri S.Ramachandra Prasad, learned counsel for the appellants and Sri G.Ramachandra Rao, learned counsel for the respondent.
It is no doubt true that it is competent for a civil Court to pass an ex parte ad interim order directing attachment before judgment, if the facts and circumstances warrant.  Normal rule should be to issue notice to the defendant requiring him to explain as to why he be not required to furnish security or suffer an order of attachment before judgment.  The order passed by the trial Court virtually proceeds on the assumption that the appellant is under obligation to furnish security.  The finding in this regard needs to be arrived at after hearing the parties.
Hence, the appeal is allowed and the order under appeal is set aside.  The trial Court shall pass orders in I.A.No.891 of 2013 after hearing both the parties.  The appellant has undertaken before this Court not to sell the property and the same shall remain in force till the I.A. is disposed of.  There shall be no order as to costs.
The miscellaneous petitions filed in this appeal shall also stand disposed of.
______________________                                                                                            
                                                          L. NARASIMHA REDDY,J
                                                                   
                                                   

______________________                                                                                        
                                                        S.V. BHATT,J
Dt:02.08.2013
kdl
         






Comments

Popular posts from this blog

Article 54 of the Limitation Act, 1963 (36 of 1963) reads as follows: “For Specific performance of a contract: Three years The date fixed for the performance, or, if no such date is fixed, when the plaintiff has notice that performance is refused.”= the apex Court in Ahmmadsahb Abdul Mila vs. Bibijan[1], wherein it was held that the date fixed for the performance of the contract should be a specified date in the calendar, and submitted that since no specified date in the calendar for performance of the contract is mentioned in the agreement of sale, the second limb of Article 54 of the Limitation Act is applicable. ; whether the suit is barred by limitation or not becomes a tribal issue and when there is a tribal issue, the lower Court ought not to have rejected the plaint at the threshold. In view of the same, order, dated 27-01-2012, in CFR.No.90 of 2012, passed by the Additional Senior Civil Judge, Ongole, (FAC) Senior Civil Judge, Darsi, is, hereby, set aside. The Appeal is allowed accordingly.

Order 39 Rules 1 and 2 CPC. plaintiff has to prove his title and possession how he came into possession prima faice , in the absence of the same, not entitled for interim injunction = The questions as to whether the lease deed was properly stamped and whether the stamp paper on which it was typed can be said to have been procured through proper source, need to be dealt with at the stage of trial.; The suit filed by the 1st respondent, is the one for injunction simplicitor in respect of an item of immovable property. He has also filed an application under Order 39 Rules 1 and 2 CPC. Basically, it was for the 1st respondent to establish that he is in possession and enjoyment of the property and that he derived the same through lawful means, particularly when he did not contend that he encroached upon the property.= assumptions of facts against to the contents of crucial third party by misreading the same- it is just un-understandable as to how the trial Court gathered the impression that Anuradha stated that there was a meeting of Board of Directors, where it was decided to lease the property to the appellants. - the trial Court itself was not clear as to whether the appellant is the lessee or a Manager or is working under any other arrangement. - The important findings that have a bearing upon the valuable rights of the parties cannot be based upon such uncertain and unverified facts. One of the cardinal principles in the matter of examining the applications filed under Order 39 Rules 1 and 2 CPC is that a party claiming that relief must come to the Court with clean hands. Prima facie, we find that there are no bona fides, much less consistency on the part of the 1st respondent, in his effort to get the order of temporary injunction. The trial Court has misread the evidence and misinterpreted the facts borne out by the record.

cancellation of the sale deeds = Under the Registration Act, 1908 and the Rules framed thereunder, which provide that registration/cancellation of document is only with reference to the executant and the claimant under a document, which is already registered. Petitioner, being a third party, is, therefore, not entitled to approach the registering authority and seek cancellation of the documents executed by third party in favour of any other party. Petitioner’s reliance upon Rule 26 of the Rules framed under the Registration Act is also misconceived inasmuch as Rule 26(k)(i) of the Rules specifically refer to the duty of the registering authority to ensure that the deed of cancellation is executed by all the executants and the claimants, who are parties to previously registered document and only on mutual consent a deed of cancellation can be registered. Since petitioner is not a party to the impugned sale transactions between two different individuals, he is not entitled to seek cancellation thereof and in any case, the petitioner does not satisfy even the requirement of Rule 26, referred to above.