Yena ala Chandra Reddv v. Nuvvula Chandramouli Naidu and Others

representing Sri Mallu Nethan Reddy The Court made the following: 1 HON'BLE MRS. JUSTICE SUREPALLI NANDA CIVIL REVI SION PETITION NO.5 38 of 2O25 ORDER: Heard Sri Sanjeev Reddy Gillela, learned counsel appearing on behalf of the revision petitioner and Sri Avinash Desai, learned Senior Designate Counsel representing Sri Mallu Nethan Reddy, learned counsel appearing on behalf of the respondent.

2. Aggrieved by the orders dated 03.02.20,15 passed in I.A.No.2 of 2Ct25 in O.S.No.23 of 2025 by the f'rincipal Senior Civil Judge, Krthagudem, the present Civil Revision Petition is preferred by tl-re revision petitioner. PERUSED THE RECORD

3. The relevant oortion of the order dated O3.O2.2025 oassed in I.A.No.2 of 2025 in O.S.No.23 of -2-425-ly-lhs learned Princioal Senior Civil Judqe, Kothao u em is extracted hereunderl "Tl-erefore, you (Field Assistant of the Court) are hereby directed to attach the schedule property annexed l-erewith if the respondents/defendants failed to furnish security or bank guarantee for the suit Ii ,. r! rEsi 7 2 SN. J cRI 538 2025 amount within (48) hours time filed by the Court after receipt of the notice by the respondent/defendant and the respondent/defendant be and are hereby prohibited and restrained until further order of this court, from transferring or charging the property described in the schedule annexed herewith, by sale, gift or otherwise, and that all persons be, and that he is hereby prohibited and restrained from receiving the same by purchase, gift or otherwise. And you are further commanded to return this warrant on or before 24.O2.2025 with an endorsement certifying the date on which and the manner in which it has been executed, or why it has not been executed.,,

4. Learned counsel appearing on behalf of the revision petitioner mainly contends that the attachment of the suit schedule property of the revision petitioner, without following due procedure envisaged for attachment before judgment is in clear violation of the principles of natural justice and the learned Judge is wrong in ordering notice on one side and attachment on the other without providing opportunity to the revision petitioner. Therefore, the present Civil Revision petition has to be allowed as prayed for.

5. Learned Senior Designated Counsel appearing on behalf of the respondent, on the other hand, contends that there is no .ll,:; .;,el"e6r-.ei3*"e,ifl 1 3 SN, J cRP 538 202 5 illegallty in the order dated 03.02.2025 passed in I.A.No.2 of 2025 in O.S.lJo.23 of 2025 by the Principal Senior Civil Judge, Kothagudem. In

6. Desionated Counsel aooearinoo n behalf of of the submissions le r o I t DD sDo nde nt laces re nce on the iud o m ent of this Court dated

21.01.1991 oassed in C.R.P.No.3247 of Lg89 in case of "Yena ala Chandra Reddv Vs. Nuvvula Chandramouli Naidu and Others" and in oarticular, Daraor f_9:nd_21_ald the same are extracted hereunder:

16. The point is whether, for pl rposes oF granting :onditional attachment under Sub- -ule (3) of Order X)(XVIII, Rule 5, the precedure of notice contemplated in Clause (b) of Order XXXVIII Rule 5 has to be followed. A reading of Order XXXUII R.ule 5 and Rule 6 would show that the legislature is making a distinctiorr between an order of "attachmert" and an order of 'conditional attachment". What the legislature meant by the words "conditional attachment" is not very clea- from the statute but the said words have received a particular meaning eversince the (lode came into force in 1908. The indication of what the legislature meant by the use of the words "conditional attirchment" can also b,e gathered from Form No. S of Appendix-F of irii:' SB 1 4 SN, J cRP 538 2015 the First Schedule to the Code of Civil Procedure, The title to the Form reads as follows: "Attachment before judgment, with order to call for security for fulfilment of decree". It is a direction to the Bailitf of the Court to do certain things. The form reads as follows: "To The Bailiff of the Court. Whereas...has proved to the satisfaction of the Court that the defendant in the above suit. . .; These are to command you to call upon the said defendant......on or before the. day of . 19... either to furnish security for the sum of rupees......to produce and place at the disposal of this Court when required or the value thereof, or such portion of the value as may be sufficient to satisfy any decree that may be passed against him; or to appear and show cause why he should not furnish security; and you are further ordered to attach the said--and keep the same under safe and secure custody until the further order of the Court; and you are further commanded to return this warrant on or before the.... day of.... 19...., with an endorsement certifying the date on which and the manner in which it has been executed, or the reason why it has not been executed. Given under my hand and the seal of the Court, this... .day of.... 19..... Judge. " 5 SN, J cRP 538 2025

17. The first part of the Form lirects the defendant to furnish security in a particular ilmount or produce and place at the disposal of the Cor-r-t the said property or its value or such portion of.the: value as may be sufficient to satisfy any decree that may be passed against him and also requires the dr:fendant to appear and show cause why he should 't,ft furnish security. The first part of the form, therefore, is a re- productic,n of the procedure as to notice erv'isaged by clause (b) of Order XXXVIII Rule 5(1), bu: the more important part of the form is the second pert and this throws considerable light as to what the legislature meant by the words "conditional attachnrent". This second part contains a further direction to the BailifF to attach and it reads as follows; "...-and you are further ordered to attach the said . .and keep the same under safe and secure cus;tody until the furtherr order of the Court;" 1ti, It will have to be noticed from the Form that the first part referred to above and the sr:cond part need nct be contained in every ordt:r passed under Order XXXVIII, Rule 5 C.P.C. This is clear from the word 'also' used in Order XXXVIII, Rule li(3). If the court thinks fit merely to order the defendant: to furnish security rrr show cause why security shotlrJ not be furnished the order as drafted in the Formr will not v 6 cRP 538-?ilij contain the second part. It is only where the court thinks that pending further orders, there shall also be an order of attachment, as contemplated by Order XXXVIII, Rule 5(3) that the second part of the Form will be included in the directions issued to the bailiff.

19. It is this second type of order that is called an order of 'conditional attachment'. If the defendant does not comply with the first part of the Form, the bailiff, if so authorised, can invoke the second part of the Form.

24. For the aforesaid reasons, we hold that the Court by reason of its power under Order XXXVIII, Rule 5 (3) can order conditional attachment 'also' along with a show cause notice to be issued under Order XXXVIII, Rule 5 (1) of CPC. The couft can adopt the first part of Form No.5, and in such an event, it may be necessary for the court to hear the defendant before issuing such a notice. It is also open to the court to adopt both the first and the second parts of Form No. 5, without issuing notice and direct the Bailiff to attach the property straight-away, if the defendant fails to comply with the first part of the Form. In the latter case, the order will be one of 'conditional attachment'. However, if the defendant comes to court and satisfies the court, it will be open to the court to withdraw such conditional attachment under Order XXXVIII, Rule 6 (2). The above interpretation of the provisions seems to us to be in 1 1 cRr, 538 harmon'r with the intention of the Legislature, In any event, Siub-rule (4) of Order XXXVIII Rule 5 does not come into play at the stage of ordering conditional attachment. No order of conditional attachrnent can be declarec as void on account of the court rrot following the procedure under Order XXXVIII, Rule 5 (f ) C.P.C."

7. Learned Senior Co nsel aooeari o on behalf of the resoondent further places reliance on the iudqment of this Court dated O s.o4.2002 Dassed in C.R. P.No.3887 of 2O0o qarwal and others Vs. Naqariuna Finance Limited" and in Da rticular, oaraqraD h Nos.11 to 19 and the same are extracted he reu nder: I 1. It is the said order, which is qur:stioned in the present revision petition. The learned Counsel for the p€ titioners vehemently contends that the conditional attachment ordered by the Court below, without issulng any prior notice, is not susl.a inable and is in violation of the provisions of Rule 5, Qrder 38 of CPC.

12. I do not find any merit in the contentions raised b l the learned Counsel for the petiticners. Under Sub-rule (3) of Rule 5 of Order 38 of CPC the Court is empowered to order conditional attachmert by calling upon the: defendant to furnish security or to show-cause why he should not furnish security within the time T 8 cRp-538-?ilil 6 prescribed thereunder failing which the schedule property will be attached by the bailiff. Thus in appropriate cases the Court while issuing a show-cause notice as prescribed under Rule 5(1) ofOrder 38 CPC can also direct the bailiff to attach the schedule property in the event of the failure of the defendant either to furnish security as ordered or to show-cause why he should not furnish security within the time prescribed. No prior notice is necessary to the defendant while making such an order of conditional attachment under Rule 5(3) of Order 38 of CPC. However it is always open to the defendant to seek withdrawal of such conditional attachment as prescribed under Rule 6 of Order 38 CPC.

13. A Division Bench of this Court in Y. Chandra Reddy v. N. Chandra mouli Naidu , , clarified the scope of the order of conditional attachment under Order 38, Rule 5(3) of CPC. This Court held that, the Court by reason of its power under Order XXXVIII, Rule 5(3) can order conditional attachment 'also' along with a show- cause notice to be issued under Order XXXVIII, Rule 5(1) of CPC. The Court can adopt the first part of Form No. 5, and in such a event, it may be necessary for the Court to hear the defendant before issuing such a notice. It is also open the Court to adopt both the first and the second parts oi Form No. 5, without issuing notice and direct the Bailiff to attach the property straight-away, if the defendant fails to comply with the I SN, ] cRP 538 2025 first parl of the Form. In the latter case, the order will not be one of 'conditional attachment'. However, if the defendant conies to Court and satisfies the Court, it will be open to the Court to withdraw such conditional attachment under Order XXXVIII, Rule 6(2) The above interpretation of the provisions seems to u:; to be in harmony with the intention of the Legislature. In any event, Srb-rule (4) of Order XXXVIII, Rule 5; does not come in1o play at the stage of ordering conditional attachm()nt. No order of conditional attachnrernt can be declared as valid on account of the Court not: following the proce:dure under Order XXXVIIII Rule 5(1) CPC.

1.t. The Division Bench also obser,/ed: "the withdrawal of attachment under Order XXX\/III, Rule 6 (2) can only be of an order of conditional ,tttachment granted tnder Order XXXVIII, Rule 5 (3). ln fact, if there corld be no conditional order of itt:tachment without rlotice to the defendant-there would be no occasion for the defendant to invoke Order XXXVIII, Rule 6(2 ) for withdrawal of the attachment. In our view, Order XXXVIII, Rule 6(2) deals with withdrawal of conditional orders' of attachment. The circumstances under which Sub-rule (2) of Order XXXVIII , Rule 6 would come into play would be, where the Court had previously exercised the power under Sub-rurle (3) of Order XX)(VIII, Rule 5 to order conditional attachment, either of rnovable or immovable property, in arldition to .ii*i..*iirilbr.-..."-.- $ l0 6 SN, J cRP 538 2015 directing the defendant to furnish security or show- cause why he should not furnish security."

15. Thus is clear that under Order 38, Rule 5(3) of CPC the Court has got ample power to direct conditional attachment before the judgment. No prior notice is necessary at that stage and Rule 5(4) is not attracted to a conditional attachment made under Rule s(3).

16. From a reading of the order under revision, it can be seen that the Court below on the basis of the material on record, recorded its satisfaction that the respondents therein are making attempts to dispose of the schedule mentloned property in favour of third parties and it is necessary to order conditional attachment. The Court below while calling upon the respondents to furnish security within 48 hours from the date of receipt of the order also provided an opportunity to them to appear and show-cause why they shall not furnish any security within the time so fixed by the Court. In the event of their failure the Court directed that the respondents be prohibited from transferring or charging the schedule mentioned immovable properties.

17. The said order directing conditional attachment is in compliance with the provisions of Order 38, Rule 5 (3) of CPC and does not suffer from 1l SN, J cRP 538 2025 any illegality or material irregularity jurisd iction conferred under law. in e><ercise of 1[]. According to the revision petitioners the impugned order was served on them ol 18-9-2000. The prop,sr course would be to approach the Court below wit.hin the time prescribed thereunder and bring to the notice oF the Couft the circumstarrces under which tht:y cannot be made liable to furnish security and also :heir objections as to the maintainability of the main OP., in which event the Court below would have passed a r order on merits. Instead they erprproached this Court on 20-9-2000, whereas the IA itself was posted to 27-9-2000 in the lower Court.

19. As expressed above the order under revision is in accordance with law and does not warrant any interference in this revision petition."

8. Learned Senior Counsel further ola s reliance on the Aoex Court dated 23.09.2010 the iudqment of reoorted in 2O 10 (9) SCC 385 in "Jai Sinoh and others Vs. Municioal Corporation of Delhi and Another" and in particular, paraoraoh N s.15 and 16 of the saad iudoment ) n d iha crnra rra a tracte d h ar.ar r nelar. " 1:;. We have anxiously considered the submissions of the learned counsel. Before we consider 7t 12 5 SN. J cRP 538 20?5 the factual and legal issues involved herein, we may notice certain well recognized principles governing the exercise of jurisdiction by the High Court under Article 227 of the Constitution of India. Undoubtedly the High Court, under this Article, has the jurisdiction to ensure that all subordinate courts as well as statutory or quasi judicial tribunals, exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act In accordance with well established principles of law. The High Court is vested with the powers of superintendence and/or judicial revision, even in matters where no revision or appeal lies to the High Court. The jurisdiction under this Article is, in some ways, wider than the power and jurisdiction under Article 226 of the Constitution of India. It is, however, well to remember the well known adage that greater.the power, greater the care and caution in exercise thereof. The High Court is, therefore, expected to exercise such wide powers with great care, caution and circumspection. The exercise of jurisdiction must be within the well recognized constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of judgment of a court, or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. l3 SN, J cRP 538 2025

16. The High Court cannot lightly or liberally act as an appellate court and re-appreciate the evidence. Generally, it cannot substitute its own conclusions for the conclusions reached by the courts below or the statutory/ quasi judicial tribunals. The pourer to re- appreciate evidence would only be justified in rare and exceptional situations where grave injustice would be done unless the High Court interferes. The t:><ercise of such discretionary power would depend on tho peculiar facts of each case, with the sole objective cf ensuring that there is no miscarriage of justice."

9. Order XXXVIIL RUIe 5 of CP C is extracted here u nder: "Where defendant may be called upon to furnish security for production of property.- (1) Where, at any stage of a suit, the Court i:; satisfied, by affidavit or otherwise, that the defendant, with intelt to obstruct or delay the execution of any decree that may be :assed against him,-- (a) is about to dispose of the whole or a 1,/ part of his property, or (b) is about to remove the whole or any part of his property from t,he local limits of the jurisdiction of |re Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the \ .a,.:: ... :*i5i.idi.:' 7 6 t4 SN. J cRP s38 2015 order to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and estimated value thereof. (3) The Court may also attachment of the whole specified. in the order direct the conditional or any portion of the property so (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. "

10. o er XXXVIIL Rule 6 of CPC as extracte d hereunder: "Attachment where cause not shown or security not furnished. (1) Where the defendant fails to show cause why he should not furnish security, or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached. l5 S,li; cRP 538 (2) Where the defendant shows such cause or furnishes the required security, and the property specified or any portion of it has been attached, the Court shall order the attachment to be withdrawr, or make such other order as it thii-ti<s fit."

11. This Court opines that the petitioner witl'rout availing the remedy available to him under Order XXXVIII, F.Lle 6(2) of CPC, (referred to and extracted above), approached thr: Court by filing the present C ivil Revlsion Petition. t2 The judgments relied upon by the l€rarned counsel appearing on behalf of the petitioner do not app y to the facts of the present case.

13. Taking into consideration the view of this Court in the judgments (referred to and extracted above), this Court opines that there is no illegality in the order dated

03.02.2025 passed in I.A.No.2 of 2025 in O.S.No.23 of 2O25 and accordingly, the present Civil Revision Petition is dismissed. However, there sha!! be no order as to costs. t I It) k, SN, J cRP 538 2015 The miscellaneous applications pending, if any, shall stand closed. ,l Sd/. P.CH. NAGABHUSHAMBA DEPUry REGISTRAR //TRUE COPY// SECTION OFFICER To,

1. The Principal Senior Civil Judge at Kothagudem 2. One CC to Sri. Sanjeev Reddy Gillela, Advocate [OPUC] 3. One CC to Sri trlallu Nethan Reddy, Advocate [OPUC] 4. Two CD Copies \ DL/PSL i , tl1 e ST,q } 7 a t) 2[, [Pil ?,T6 HIGH COURT DATED:2710212025 ORDER CRP.No.538 of 2025 A (fl,, b 6 DISMISSING THE C.R-P