The opening sentence of Rule 1 of Order XXXVIII CPC, mandates that the court must be satisfied about the allegations made in the application filed by the plaintiff. The satisfaction must be evident from the order, particularly when the court had the benefit of the affidavit and the counter affidavit, filed by the parties, and the arguments advanced on their behalf.
It must not be forgotten that the liability of a defendant in a suit, comes to be decided, only when a decree is passed against him. Till such time, neither his property can be proceeded against, nor his liberty can be restricted, on mere account of pendency of a suit against him. Rules 1 and 5 of Order XXXVIII, bring about extraordinary circumstances, wherein the defendant is burdened, even before a decree is passed against him. While placing such a burden, the court must be satisfied about the existence of the factors, stipulated there for. The satisfaction referred to, in the corresponding provisions, must be evident from a reading of the order, and it cannot be left to be inferred. The trial curt did not bestow the required amount of attention, in disposing of the I.A.
Once the petitioner had denied the allegations made by the respondent, and in fact, had given an undertaking not to leave the local limits of the court, there was absolutely no justification for the trial court, in allowing the I.A. in the manner referred to above.
Andhra High Court
Vemulapalli Ravichandra vs Mattampalli Srinivasa Rao on 5 April, 2007
The respondent filed O.S.No.171 of 2006, in the Court of Junior Civil Judge, Huzurnagar, for recovery of certain amount, on the basis of a promissory note. The petitioner was set ex parte, on account of his failure to file the written statement, within the stipulated time, and thereafter, the suit was posted for issues. At that stage, the respondent filed I.A.No.436 of 2006, under Rule 1 of Order XXXVIII CPC, with a prayer to direct the arrest of the petitioner. It was pleaded that the petitioner is hatching a plan, to transfer all his properties, in the name of third parties, and trying to leave the local limits of the court, for abroad. The petitioner filed a counter affidavit opposing the I.A. He pleaded that he does not have any movable or immovable properties, and the question of transferring the same to third parties does not arise. He denied the allegation that he is trying to leave the local limits of the court. He stated that his two children are studying in a school at Kodad, and he has undertaken that he would not leave the present place of living, till the disposal of the suit. Through its order, dated 6.11.2006, the trial court required the petitioner, to produce third party security, within four days. The same is challenged in this Civil Revision Petition.
Sri E.V.Bhagiratha Rao, learned counsel for the petitioner, submits that the filing of the application by the respondent was in gross misuse of process of court. He contends that the respondent made bald allegations that the petitioner is trying to alienate the property and leaving the local limits of the court. According to him, the trial court committed a serious error, in not adverting to any of the contentions advanced by the petitioner, raised in the counter affidavit and during the course of arguments. He submits that the order under revision does not accord with the procedure prescribed under Rule 1 of Order XXXVIII CPC.
Sri Palle Nageswara Rao, learned counsel for the respondent, on the other hand, submits that only on receiving reliable information, about the attempts of the petitioner, to dispose of his properties and to leave the local limits of the trial court, the respondent filed the application, and that the trial court was prima facie satisfied, about the allegations. He contends that the very fact that the petitioner is not coming forward to furnish security, discloses that there are no bonafides, on his part.
Order XXXVIII CPC had two important components, in the context of protecting the interests of the plaintiff, in a suit for recovery of amounts. The first is covered by Rule 1 thereof, which enables the plaintiff to seek the arrest of the defendant, and the second is covered by Rule 5, which provides for attachment of the property held by the defendant, before judgment. In an application filed under Rule 1, the plaintiff has to satisfy the court that the defendant has absconded the local limits of the jurisdiction of the court; or is about to dispose of, or remove from the local limits of jurisdiction, any property, or is likely to do so; with the object of defeating the decree that may be passed against him. In the other contingency, the satisfaction is only, as to disposal, or removal of the property, from the jurisdiction of the court. The nature of steps to be taken by the court substantially varies, in relation to the applications that may be filed, under
Rule 1 on the one hand and Rule 5, on the other, of Order XXXVIII CPC. In the former, on being prima facie satisfied about the contents of the affidavit, or otherwise, the court may, straight away, issue warrant of arrest for the production of the defendant, before the court, so that he may be required to furnish security, for his appearance. In case of attachment before judgment, the court is under obligation to give an opportunity to the defendant, either to furnish security in a sum, or to produce the property, at the disposal of the court, or to appear and show-cause as to why he should not be required to furnish such security. Once the defendant appears in either case, and explains, the court is under obligation to pass a reasoned order, in support of its conclusion.
In the instant case, the application is filed under Rule 1, requesting the court, to cause the arrest of the petitioner, alleging that he is likely to alienate his properties and to abscond from the local limits of the jurisdiction of the court. The trial court appears to have ordered notice on this petition, though such course is not contemplated. On receiving notice, the petitioner filed a counter affidavit, denying the allegations made by the respondent. He stated that he has no properties, and the question of alienating the same, does not arise. As regards apprehension of the respondent that the petitioner may leave the local limits of the court, he stated that his children are studying in a school at Kodad, and he has undertaken not to leave the limits of the court, till the suit is disposed of.
The respondent did not place any other material before the trial court. In view of the assertion made by the petitioner and the denial of the respondent, the trial court was under obligation, to record its satisfaction, supported by reasons. The order passed in the I.A., reads as under: "Heard the learned counsel for both parties. Perused the record. Within four days, the respondent to produce third party security."
This order does not satisfy the requirement of the relevant provision, at all. The opening sentence of Rule 1 of Order XXXVIII CPC, mandates that the court must be satisfied about the allegations made in the application filed by the plaintiff. The satisfaction must be evident from the order, particularly when the court had the benefit of the affidavit and the counter affidavit, filed by the parties, and the arguments advanced on their behalf.
It must not be forgotten that the liability of a defendant in a suit, comes to be decided, only when a decree is passed against him. Till such time, neither his property can be proceeded against, nor his liberty can be restricted, on mere account of pendency of a suit against him. Rules 1 and 5 of Order XXXVIII, bring about extraordinary circumstances, wherein the defendant is burdened, even before a decree is passed against him. While placing such a burden, the court must be satisfied about the existence of the factors, stipulated there for. The satisfaction referred to, in the corresponding provisions, must be evident from a reading of the order, and it cannot be left to be inferred. The trial curt did not bestow the required amount of attention, in disposing of the I.A.
Once the petitioner had denied the allegations made by the respondent, and in fact, had given an undertaking not to leave the local limits of the court, there was absolutely no justification for the trial court, in allowing the I.A. in the manner referred to above.
The Civil Revision Petition is accordingly allowed, and the impugned order is set aside. There shall be no order as to costs.
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