Full Judgment
Srinivasan, J.
1. This appeal against the order of interim attachment, arises in the following circumstances. The respondent filed O.S.No.6116 of 1991 for recovery of a sum of Rs. 59,820 said to be due on promissory note. Even in the plaint, the respondent admitted that the defendant had deposited his title deeds relating to his property bearing Plot No. 9 though it is wrongly typed as No. 8, Thailammal Kamakshi Nagar in Puliyur Village, Egmore-Nungambakkam Taluk. In para.6 of the plaint it is stated that though the plaintiff is entitled to file a suit on the equitable mortgage, he is filing the suit only as one on promissory note. Nothing is stated in the plaint as to why the plaintiff is not proceeding against the security. Nor is it stated in the plaint that the plaintiff is giving up the security. Even in the cause of action paragraph, a reference is made to the deposit of title deeds.
2. Along with the plaint, the plaintiff filed I.A. No. 14617 of 1991 for attachment of property which was already given to him as security under equitable mortgage. The court passed an order on 4.9.1991 directing notice to the defendant and also directing him to furnish security by 17.9.1991. That order is wholly unsustainable in view of the fact that the plaintiff has admitted in his plaint that the property had been given to him as security by way of equitable mortgage by deposit of title deeds. The order shows that the court has not applied its mind to the facts of the case. It is the general complaint from the Bar that on applications for attachment of property, the courts do not at all apply their minds and they grant orders automatically as if it is a matter of course. This Court has repeatedly drawn the attention of the Subordinate Judiciary to the provisions of Order 38, Rule 5, C.P.C. and pointed out that orders of interim attachment shall not be passed as a matter of course.
3. After service of notice, the defendant filed vakal at on 17.9.1991 and prayed for time to file counter. He also filed an application on 23.9.1991 in I.A. No. 16215 of 1991 to set aside the interim order directing him to furnish security. In spite of that application pending on the file, learned Judge has passed an order on 3.10.1991 granting interim attachment and granting time for counter till ll.12.1991. It should be mentioned that on two earlier occasions, namely, on 17.9.1991 and 30.9.1991 learned Judge passed orders adjourning the matter and directing the defendant to furnish security. Even at that stage, the court did not apply its mind and decide the question whether security should be furnished in the present case. It should have heard the defendant on that question and passed appropriate orders. Even when the defendant has filed the application to set aside the interim order directing him to furnish security, the court has not chosen to decide the question.
4. The grievance of the defendant/appellant is perfectly justified. The court below is in error in adopting this procedure and granting orders automatically to the plaintiff.
5. In any event in the present case, the defendant has in his affidavit in I.A. No. 16215 of 1991 given an undertaking not to alienate or create further encumbrance over the property in question till the disposal of the suit. That is found in para.9 of the said affidavit. In the counter affidavit filed in I.A. No. 14617 of 1991 the defendant has given the same undertaking in para.10. He has also pointed out in para.11 that the property which is given as security, is worth more than Rs. 3,50,000 and the original title deeds are already with the plaintiff.
6. In the circumstances of the case, the undertaking given by the defendant in the two affidavits is recorded and in view of the undertaking, there is no necessity whatever for attaching the properly. The order of interim attachment passed by the court below in I.A. No. 14617 of 1991 in set aside. The application is dismissed. The civil miscellaneous appeal is allowed. There will be no order as to costs.