Case Note & Summary
The appellant/defendant filed two miscellaneous first appeals against orders passed by the XXXIII Additional City Civil & Sessions Judge, Bengaluru in O.S.No.1567/2018. The respondent/plaintiff had filed a suit for recovery of Rs.30,90,000/- from the appellant. In the suit, the plaintiff filed IA No.1 under Order 38 Rule 5 CPC for attachment of two items of properties belonging to the defendant. The defendant filed IA No.9 under Order 38 Rule 2 read with Section 151 CPC seeking attachment of the plaintiff's property, alleging that the plaintiff was attempting to dispose of his property to defeat any decree that may be passed. The trial court rejected IA No.9 on 12.02.2019. The defendant also filed IA Nos.10 and 11 under Section 151 CPC seeking certain interim orders, which were allowed by the trial court on 25.04.2019. The defendant appealed against both orders. The High Court held that the defendant had made out a prima facie case for attachment of the plaintiff's property and that the balance of convenience was in favour of granting the attachment. The court set aside the order rejecting IA No.9 and allowed the application. The appeals were disposed of accordingly.
Headnote
A) Civil Procedure - Attachment before judgment - Order 38 Rule 2 read with Section 151 CPC - The defendant sought attachment of plaintiff's property alleging that the plaintiff was about to dispose of his property to defeat the decree. The trial court rejected the application. The High Court held that the defendant had made out a prima facie case and that the balance of convenience was in favour of granting attachment. The order of the trial court was set aside and the application was allowed. (Paras 5-8)
B) Civil Procedure - Interim orders - Order 43 Rule 1(q) CPC - Appeal against order rejecting application for attachment - The appeal is maintainable as the order rejecting an application under Order 38 Rule 2 is appealable under Order 43 Rule 1(q) CPC. (Para 1)
Issue of Consideration
Whether the trial court erred in rejecting the defendant's application under Order 38 Rule 2 read with Section 151 CPC for attachment of the plaintiff's property before judgment.
Final Decision
The High Court allowed MFA No.7496/2019, setting aside the order dated 12.02.2019 on IA No.9, and allowed IA No.9. MFA No.4263/2019 was disposed of as having become infructuous or not pressed. The appeals were disposed of by a common judgment.
Law Points
- Order 38 Rule 2 CPC
- Section 151 CPC
- Attachment before judgment
- Prima facie case
- Balance of convenience
- Irreparable injury
Case Details
2019 LawText (KAR) (09) 18
Miscellaneous First Appeal No.4263 of 2019 (CPC) and Miscellaneous First Appeal No.7496 of 2019 (CPC)
K.Sreedhara for appellant, M.N.Raghu for respondent
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Nature of Litigation
Civil suit for recovery of money and applications for attachment before judgment.
Remedy Sought
The appellant/defendant sought attachment of the plaintiff's property before judgment under Order 38 Rule 2 CPC.
Filing Reason
The defendant alleged that the plaintiff was about to dispose of his property to defeat any decree that may be passed in the suit.
Previous Decisions
The trial court rejected IA No.9 filed by the defendant under Order 38 Rule 2 CPC on 12.02.2019. The trial court allowed IA Nos.10 and 11 filed by the defendant under Section 151 CPC on 25.04.2019.
Issues
Whether the trial court erred in rejecting the defendant's application under Order 38 Rule 2 read with Section 151 CPC for attachment of the plaintiff's property before judgment.
Submissions/Arguments
The appellant/defendant argued that the plaintiff was attempting to dispose of his property to defeat the decree, and therefore attachment was necessary.
The respondent/plaintiff opposed the application, but the judgment does not detail the arguments.
Ratio Decidendi
The court held that the defendant had made out a prima facie case for attachment of the plaintiff's property under Order 38 Rule 2 CPC, and the balance of convenience was in favour of granting the attachment to protect the defendant's interest in the event of a decree in his favour.
Judgment Excerpts
The respondent in these two appeals is the plaintiff in the suit filed for recovering Rs.30,90,000/- from the appellant/defendant.
The trial court rejected IA No.9 on 12.02.2019. The defendant also filed IA Nos.10 and 11 under Section 151 CPC seeking certain interim orders, which were allowed by the trial court on 25.04.2019.
The High Court held that the defendant had made out a prima facie case for attachment of the plaintiff's property and that the balance of convenience was in favour of granting the attachment.
Procedural History
The respondent/plaintiff filed O.S.No.1567/2018 for recovery of Rs.30,90,000/-. The plaintiff filed IA No.1 under Order 38 Rule 5 CPC for attachment of defendant's properties. The defendant filed IA No.9 under Order 38 Rule 2 CPC for attachment of plaintiff's property, which was rejected on 12.02.2019. The defendant also filed IA Nos.10 and 11 under Section 151 CPC, which were allowed on 25.04.2019. The defendant appealed against both orders in MFA No.4263/2019 and MFA No.7496/2019. The High Court disposed of both appeals by a common judgment on 26.09.2019.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 38 Rule 2, Order 38 Rule 5, Order 43 Rule 1(q), Section 151
