Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (for short “the Code”) to direct the respondent to furnish security for the suit amount, failing which the suit schedule property be attached. In support of his application, the petitioner filed third party affidavit of one B.G. Ramalingam, wherein he has stated that the respondent/defendant shifted his family to Bangalore and that he is seeking to alienate the petition schedule property to evade debt to the petitioner. - The respondent further stated that he is having a jewellery shop wherein he has invested several lakhs of rupees; that he is a permanent resident of Hindupur and that he has no intention to sell the property or shifting to Bangalore. petitioner failed to satisfy the ingredients of the provisions of Order XXXVIII Rule 5 of the Code and that as the plea of the petitioner in the suit is identical to the defence of his wife in O.S.No.36/2003, there is not even a remote chance of the petitioner succeeding in the suit. On this reasoning, the Court below has dismissed the petitioner’s application.

HON'BLE SRI JUSTICE C.V. NAGARJUNA REDDY

C.R.P.No.30 of 2013

Date : 22-1-2013

Between:

 K. Surya Prakash                                                                   .. Petitioner

And

N. Namburi Prabhakar                                                  .. Respondent

Counsel for petitioners : Sri P. Lakshmana Rao

Counsel for respondent :  --

The Court made the following:

ORDER:

           This Civil Revision Petition arises out of order dated 16-11-2012 in I.A.No.468/2011 in O.S.No.29/2011 on the file of the learned Additional District Judge, Hindupur.

          The petitioner filed the above mentioned suit for recovery of a sum of Rs.17,93,960/- against the respondent.  He has also filed I.A.No.468/2011 under Order XXXVIII Rule 5 of the Code of Civil Procedure, 1908 (for short “the Code”) to direct the respondent to furnish security for the suit amount, failing which the suit schedule property be attached.  In support of his application, the petitioner filed third party affidavit of one B.G. Ramalingam, wherein he has stated that the respondent/defendant shifted his family to Bangalore and that he is seeking to alienate the petition schedule property to evade debt to the petitioner. 

 The respondent filed a counter-affidavit wherein he has stated that the wife of the petitioner has borrowed a sum of Rs.80,000/- from N.P. Satish, his son, and executed a registered simple mortgage deed; that his son filed O.S.No.36/2003 in the Court of the learned III Additional District Judge, Tirupathi, against the petitioner’s wife for recovery of the mortgage debt wherein the petitioner deposed as DW-2; that in the said suit, the wife of the petitioner has taken the plea that she has discharged the mortgage debt under receipt from the respondent and that disbelieving the said version, the Court has decreed the suit O.S.No.36/2003 on 21-3-2006.  It is further averred that the respondent’s son, in execution of the decree, has brought the mortgaged property to sale and the same was sold in the Court auction which was purchased by the decree-holder himself.  The respondent also averred that having failed in convincing the Court in O.S.No.36/2003 that the mortgage debt was discharged, the petitioner has filed the present suit with a malafide intention to recover the said amount.  

The respondent further stated that he is having a jewellery shop wherein he has invested several lakhs of rupees; that he is a permanent resident of Hindupur and that he has no intention to sell the property or shifting to Bangalore. 

          On the above mentioned pleadings, the lower Court has concluded that the petitioner failed to satisfy the ingredients of the provisions of Order XXXVIII Rule 5 of the Code and that as the plea of the petitioner in the suit is identical to the defence of his wife in O.S.No.36/2003, there is not even a remote chance of the petitioner succeeding in the suit.  On this reasoning, the Court below has dismissed the petitioner’s application.

          Having carefully considered the case in its entirety, I am of the opinion that the reasons assigned by the lower Court do not suffer from any jurisdictional error warranting interference by this Court in this revision petition.  The Civil Revision Petition is accordingly dismissed.

          As a sequel to dismissal of the Civil Revision Petition, CRPMP No.30/2013 is disposed of as infructuous.

          ________________________

Justice C.V. Nagarjuna Reddy

Date : 22-1-2013

AM