ORDER
S. Ashok Kumar, J.
1. This Civil Revision Petition has been filed against the order passed in I.A. No. 358 of 2002 in O.S. No. 98 of 2002 by the learned Subordinate Judge Mettur.
2. The revision petitioner filed a suit in O.S. No. 98 of 2002 praying for a decree directing the defendant/respondent herein to pay a sum of Rs. 2, 14, 120/- with interest on the principal amount of Rs. 90, 000/- at 24% p.a. from the date of the suit till the date of decree and subsequent interest thereon till realization on the ground that on 01.10.1996, the defendant borrowed a sum of Rs. 90, 000/- from the plaintiff and executed a promissory note promising to repay the amount with interest at 24% p.a. Along with the suit, the plaintiff also filed I.A. No. 358 of 2002 for attachment of the properties of the defendant before judgment. In support of the above application, the plaintiff also filed a third party affidavit, by name, T.S. Ambayeram. The learned Subordinate Judge dismissed the application for attachment before judgment on the ground that earlier, on the same averments, the plaintiff filed a creditor Insolvency Petition against the defendant before the very same Court and the same was contested by the defendant, the plaintiff himself withdrew the I.P. as not pressed and thereafter, filed the suit for the same cause of action and also on the ground that there is no evidence on material to show that the defendant is making arrangement to alienate any of his properties. Aggrieved over the said order, the plaintiff has filed this Civil Revision Petition.
3. The learned Counsel appearing for the revision petitioner would contend that the learned Subordinate Judge has not considered the application for attachment before judgment and also the affidavit filed in support of the same and the order of the learned Subordinate Judge is vague and a non-speaking order.
4. On the other hand, the learned Counsel appearing for the respondent would contend that the requirements under Order 38 Rule 5 of the Code of Civil Procedure have not been complied with by the petitioner by sufficient evidence and therefore, the dismissal of the application by the learned Subordinate Judge is justified.
5. Heard both the sides. The suit was filed on the basis of a promissory note said to have been executed by the defendant on 01.10.1996 for a sum of Rs. 90, 000/- repayable with interest at 24%. It is also averred in the application that on 01.08.1999, the respondent paid Rs. 500/- and made an endorsement on the promissory note, thereby acknowledging his liability, and thus, the limitation of three years was also saved by such an endorsement. The respondent stoutly denied the borrowal of money from the plaintiff and execution of the promissory note and contended that the suit has been filed due to enmity, and alleged that the promissory note is a forged one.
6. Earlier, the same petitioner filed a creditor petition against the respondent to declare him as insolvent in I.P. No. 43/97, which was renumbered as I.P. No. 8/1999 on the file of the same Court on the same allegations of liability of the respondent under the suit promissory note mentioned earlier. The respondent contested the same seriously and on 11.10.2001 when the I.P. was posted for enquiry, the petitioner did not press the I.P. and the same was dismissed with cost. It is also averred that in the I.P. proceedings, the petitioner wantonly dragged on the proceedings for two years by postponing the payment for notification charges. After dismissal of the I.P. as not pressed, on the very same cause of action, the plaintiff filed the suit and sought for attachment before judgment, which was dismissed by the learned Subordinate Judge, against which this Civil Revision Petition is filed.
5. Passing an order of attachment before judgment of the properties of the defendant in a money claim requires the satisfaction of the Court that the defendant is really and likely to dispose of or alienate his properties with an intent to defeat the claim of the plaintiff. Under Order 38 Rule 5 C.P.C., the Court may call upon the defendant to furnish security for production of property at any stage of a suit only when the Court is satisfied by an affidavit or otherwise that the defendant with an intent to obstruct or delay the execution of any decree that may be passed against, him is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. In the same Order, Order 38 Rule 5(4) was introduced, which reads as follows:-
'(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.'
It would clearly demonstrate that it is a protection measure to save the interest of the defendant and intends to invalidate the order of attachment before judgment of the defendant's property indiscriminately without notice. Consequent to the recommendation of the Law Commission by S.85 of Act 104 of 1976, Order 38 Rule 5 (4) C.P.C. was inserted with effect from 01.02.1977. The statement of Objects and Reasons for the introduction of this sub-Rule (4) (vide Gazette of India, Extraordinary Part II, S.2 dated 8.4.1974) reads under:
'There is divergence of opinion between the High Court as to whether an attachment made before judgment without complying with the procedure specified in R.5 is a nullity or is voidable. Rule 5 is intended for the protection of the person whose property is sought to be attached before judgment. If he does not receive the notice required by law, and is thus denied the opportunity of preventing the attachment by the offer of security an injustice would accrue to him. Rule 5 is, therefore, being amended to clarify that, where the attachment is made without complying with the procedure laid down in R.5, such attachment shall be void.'
In the Bill, the provision (O.38, R.5(4) stood as under :
'Any attachment made under this rule shall be void if it is not made in the manner specified in this rule',
and finally, it emerged as follows-
'if an order of attachment is made, without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void.'
6. In N.Pappammal v. L. Chidambaram : AIR1984Mad70 , this Court has held as follows:-
'In view of sub-rule (4) of R.5 of O.38 an attachment before judgment indiscriminately without notice, giving an opportunity to the defendant to stay off the attachment by offer of security and without rigidly conforming to the requirements of sub-rule (1) would be invalid.'
This Court has also held as follows:-
'The essential requirements for invoking the power of Court to effect an attachment under O.38, R.5 (1) are that the Court must be satisfied that the defendant is about to dispose of the whole or any part of his or her property, or the defendant is about to remove the whole or any part of his or her property from the local limits of the jurisdiction of the court and the defendant is intending so to do with a view to cause obstruction or delay the execution of any decree that may be passed against him or her. It is incumbent that the plaintiff should state precisely the grounds on which the belief or apprehension is entertained that the defendant is likely to dispose of or remove the property. It may even be necessary in some cases to give the source of information and belief.'
7. In Sakthivel v. Sekar this Court has held that the remedy of an attachment before judgment is certainly extraordinary, that if it is granted, it casts an obligation on the party against whom it is made, even before he is heard in defence to the suit and that the Court has to act with utmost circumspection and with maximum care and caution before issuing such an order.
8. In Palglhar Rolling Mills Pvt. Ltd. v. Visvesvaraya I. & S. Ltd. : AIR1985Kant282 , it has been held as follows:-
'Order 38, Rule 5 is a mandatory provision demanding of the Court to satisfy itself first that the defendant is intending to obstruct or delay the execution of the decree that may be passed against him. If the order passed by the Court does not speak or show that the Court has applied its mind to the requirements of O.38, Rule 5 or if the order passed by the Court below does not show clearly that it has considered the material on record, or if the order does not show that the court is satisfied that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of the property, the order would be in violation of Or.38, R.5. Or.38, Rule 5 as it stood before the amendment in 1976, would have at the most rendered such order irregular. But, now sub-rule (4) inserted by S.85(1) of the Act 104 of 1976 reads that if an order of attachment is made without complying with the provisions of sub-rule (1) of R.5 of O.38, such attachment shall be void. Sub-rule (4) has been inserted with a view to see that the Courts do not pass such an extra-ordinary order in a cavalier manner and without satisfying themselves about the requirements of Order 38, R.5.'
It has also been held as under:-
'Simple mention of the apprehension is not sufficient to show that the defendant was intending to dispose of the properties with a view to obstruct or delay the execution of a decree that may be passed against him. Simple reproduction of the language used in Or.38, R.5 will not meet the requirements of Or.38, R.5 C.P.C. The affidavit must state the source of the information or apprehension. Unless the source is disclosed the Court should not hasten to pass an order under Or.38, R.5.'
9. In Renox Commercials Ltd. v. Inventa Technologies Pvt. Ltd. : AIR2000Mad213 , this Court has held as follows:-
'26. Before dealing with the said question as to whether those specific allegations supported by materials are available in the present case, let us refer to the guiding principles that can be deduced from the perusal of all the authorities cited by the Counsel on either side as mentioned above. The following are the guiding principles'-
'(1) That an order under Order 38, Rule 5 can be issued only if circumstances exist as are stated therein to the satisfaction of the Court.
(2) That the Court would not be justified in issuing an order for attachment before judgment, or for security merely because it thinks that no harm would be done thereby or that the defendants would not be prejudiced.
(3) That the affidavit in support of the contentions of the applicant, should not be vague and it must be properly verified. Where it is affirmed true to knowledge or information, it must be stated as to which portion is true to knowledge and the source of information should be disclosed and the grounds for belief should be stated.
(4) That a mere allegation that the defendant is selling off his properties is not sufficient. Particulars must be stated.
(5) An order of attachment before judgment is a drastic remedy and the power has to be exercised with utmost care and caution, as it may be likely to ruin the reputation of the party against whom the power is exercised. As the Court must act with the utmost circumspection before issuing an order of attachment, the affidavit filed by the applicant should clearly establish that the defendant, with intent to obstruct or delay the execution of the decree that may be passed against him is about to dispose of the whole or any part of his property.
(6) A mere mechanical repetition of the provisions in the Code or the language therein without any basic strata of truth underlying the allegation or vague and general allegations that the defendant is about to dispose of the property or to remove it beyond the jurisdiction of the Court, totally unsupported by particulars, would not be sufficient compliance with Order 38, Rule 5 of C.P.C.
(7) An attachment before judgment is not a process to be adopted as a matter of course. The suit is yet to be tried and the defence of the defendant is yet to be tested. At the nebulous juncture, the relief which is extraordinary could be granted only if the conditions for its grant, as per the provisions of the Code, stand satisfied. This process is never meant as a lever for the plaintiff to coerce the defendant to come to terms. Hence utmost caution and circumspection should guide the Court.'
10. In Bank of India v. M/s . N.T. Work Industries : AIR1989Delhi60 , it has been held as follows:-
'The object of the entire order of the Code is to safeguard the interest of the plaintiff and thwart any possible attempt by the defendant to obstruct or delay the satisfaction of a decree which might be passed against the defendant and to achieve this purpose. R.5 thereof enables the court to issue attachment before judgment of the property of the defendant so that any attempt on the part of the defendant to delay or defeat the satisfaction of the decree is forestalled. In accordance with the provisions of O.38, R.5 of the Code, it is incumbent upon the plaintiff to satisfy the Court that the defendant has intention to obstruct or delay the execution of any decree that may be passed in this suit and for this purpose the defendant is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. It is only on the satisfaction of all these conditions that the plaintiff can be said to be entitled to an order of attachment before judgment in terms of O.38, R.5. Thus, before this R.5 can be invoked it must inter alia, be shown by the plaintiff that defendant has acted or is about to act with intent to obstruct or delay the execution of any decree that may be passed against him. The Court must be satisfied that all the ingredients of this rule exist. Mere fact that no harm would be caused to defendant or that defendant would not be prejudiced by such an order could be no ground to pass order under O.38, R.5 for attachment before judgment. It is in its very nature an extraordinary jurisdiction and has to be exercised sparingly and strictly in accordance with procedure prescribed by the Code. There must be some definite evidence on these points and not mere vague allegations. The plaintiff must also prove a prima facie case in his favour.'
11. From the judgments referred to above, it is clear that before passing an order of attachment, the Court must satisfy itself that the defendant in order to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property. As far as this case is concerned, apart from the interested affidavit by the petitioner/plaintiff, a third party, by name, T.S. Ambayeram, has filed an affidavit of about six lines alleging that he knows the defendant and the defendant told him that he is going to sell his movable and immovable properties to his close relative and going to settle at Thiruppur, and informed this to the plaintiff. A perusal of the third party affidavit would show that it is vague with regard to the particulars of the date on which the respondent/defendant informed the third party about his intention to sell his properties to his close relative, who is the relative who is going to purchase the properties of the respondent/defendant and what was the necessity of the defendant to inform the said third party. Mere filing of a third party affidavit saying that the defendant told him that he is going to dispose of his property is not sufficient to satisfy the Court to pass an order of attachment before judgment. There should be some concrete material by way of acceptable evidence placed before the Court, so that the Court can satisfy itself about passing an order of attachment before judgment. Passing an order of attachment before judgment is not a mere formality and such order cannot be passed in a haphazard or cavalier manner since such an order casts an obligation on the party against whom it is made even before he is heard in defence to the suit.
12. Particularly, in this case, the petitioner has withdrawn an Insolvency Petition filed by him when it was seriously contested and on the very same cause of action, has filed the suit and sought for an order of attachment before judgment of the defendant's properties. A perusal of the order of the learned Subordinate Judge would show that he has applied his mind properly and has also come to the conclusion that there is no other evidence or material produced except the mere allegation of a third party that the respondent is having an intention and making an arrangement and effort to dispose of his properties to delay the execution of the decree that may be passed against him. I do not find any impropriety in the order of the learned Subordinate Judge. On the other hand, the petitioner/plaintiff has filed a vexatious insolvency petition and also the suit and also has come forward by way of this Civil Revision Petition before this Court against the respondent/defendant for the reasons best known to him. In the above circumstances, this civil revision petition deserves to be dismissed with exemplary cost. The revision petitioner/plaintiff is directed to pay a cost of Rs. 3, 000/- (Rupees Three thousand only) to the respondent/defendant. This civil revision petition is dismissed. Consequently, C.M.P. No. 5048 of 2003 is also dismissed.