Case Note & Summary
The appellant, Radiance Realty Developers India Limited, filed a suit against the respondent, M. Rekha, for recovery of Rs.41,42,871/- based on a construction agreement dated 17.08.2020. The appellant also filed an application under Order XXI Rule 46 of the Code of Civil Procedure, 1908, seeking attachment of the property before judgment. The Principal Commercial Court, Egmore, Chennai, rejected the application on 29.07.2024, holding that Order XXI Rule 46 applies only to execution proceedings and not to original suits, and that there was no privity of contract between the appellant and Punjab National Bank, which had issued a demand notice and possession notice against the respondent. Aggrieved, the appellant filed two civil miscellaneous appeals under Section 13 of the Commercial Courts Act, 2015 read with Order XLIII Rule 1 CPC. The High Court of Madras, comprising Justice C.V. Karthikeyan and Justice K. Kumaresh Babu, heard the appeals. The court noted that the application under Order XXI Rule 46 was indeed not maintainable in an original suit, as that provision pertains to execution proceedings. However, the court observed that the appellant could have sought relief under Order XXXVIII Rule 5 CPC, which allows attachment before judgment if the court is satisfied that the defendant intends to obstruct or delay the execution of any decree that may be passed. The court held that the rejection of the application was premature and that the Commercial Court should have considered whether the application could be treated as one under Order XXXVIII Rule 5 CPC. Accordingly, the High Court allowed the appeals, set aside the impugned order, and remanded the matter to the Commercial Court for fresh consideration of the application under Order XXXVIII Rule 5 CPC. The court directed the Commercial Court to pass appropriate orders within a period of four weeks from the date of receipt of the order.
Headnote
A) Civil Procedure - Attachment Before Judgment - Order XXI Rule 46 CPC - Maintainability in Original Suit - The court held that Order XXI Rule 46 CPC applies only to execution proceedings and not to original suits. The application filed by the plaintiff for attachment of property before judgment was rejected by the Commercial Court as not maintainable. However, the High Court observed that the plaintiff could have sought relief under Order XXXVIII Rule 5 CPC, which allows attachment before judgment if the defendant intends to obstruct or delay execution. The court set aside the rejection and remanded the matter for consideration under Order XXXVIII Rule 5 CPC. (Paras 6-7) B) Commercial Law - Appeal Against Interlocutory Order - Section 13 Commercial Courts Act - The appeal was filed under Section 13 of the Commercial Courts Act, 2015 read with Order XLIII Rule 1 CPC. The High Court allowed the appeal and set aside the impugned order dated 29.07.2024, directing the Commercial Court to consider the application afresh under Order XXXVIII Rule 5 CPC. (Paras 1, 7)
Issue of Consideration
Whether an application under Order XXI Rule 46 of the Code of Civil Procedure, 1908 is maintainable in an original suit for attachment of property before judgment, and if not, whether the court can grant relief under Order XXXVIII Rule 5 CPC.
Final Decision
The High Court allowed the appeals, set aside the impugned order dated 29.07.2024, and remanded the matter to the Principal Commercial Court, Egmore, Chennai, for fresh consideration of the application under Order XXXVIII Rule 5 CPC. The Commercial Court was directed to pass appropriate orders within four weeks from the date of receipt of the order.
Law Points
- Order XXI Rule 46 CPC applies only to execution proceedings
- not original suits
- Order XXXVIII Rule 5 CPC allows attachment before judgment if defendant intends to obstruct or delay execution
- Commercial Courts Act Section 13 provides for appeals against interlocutory orders
