The High Court
Case Details
- 1 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 19TH DAY OF JUNE, 2025 BEFORE THE HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL WRIT PETITION NO.48315/2018 (GM-CPC) C/W WRIT PETITION NO.48313/2018 (GM-CPC) WRIT PETITION NO.48314/2018 (GM-CPC) Digitally signed by RUPA V Location: High Court of karnataka IN W.P. No.48315/2018: BETWEEN: SRI. VIJAY S/O MAHADEVAPPA AGED ABOUT 40 YEARS R/AT D.NO.273, 1ST FLOOR 3RD CROSS, T.K.LAYOUT MYSURU-570 009. AND ALSO AT: ASSISTANT PROFESSOR DEPARTMENT OF KANNADA GOVT. FIRST GRADE WOMEN'S COLLEGE K.R. NAGARA-571 602 MYSURU DISTRICT. (BY SRI. MANJUNATH PRASAD V, ADV.,) AND: MAHADESWARASWAMY INFRATECH AND HOUSING DEVELOPERS PVT. LTD. SITUATED AT NO.55 3RD CROSS, 1ST MAIN, GURUKULA LAYOUT (BEHIND J.P.NAGARA OUTER RING ROAD) MYSURU-570 031 REPT. BY ITS MANAGING DIRECTOR …PETITIONER - 2 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR
Legal Reasoning
SRI. N.S. NANJUNDASWAMY S/O SUBRAMANYA (BY SRI. D. SESHADRI, ADV., [ABSENT]) …RESPONDENT THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF IMPUGNED ORDER OF THE CERTIORARI TO QUASH THE ATTACHMENT OF BEFORE JUDGMENT DATED 6.3.2018 PASSED IN I.A.NO.1 IN THE ORIGINAL SUIT IN O.S.NO.241/2018 ON THE FILE OF HON'BLE II ADDL. SR. CIVIL JUDGE AT MYSURU VIDE ANNEX-A & ETC. IN W.P. NO.48313/2018: BETWEEN: SRI. MALLESH .G S/O D.C. GOWDAPPA AGED ABOUT 45 YEARS R/AT D.NO.126, 4TH BLOCK RAMASWAMY LAYOUT NANJANGUD TOWN-571301 MYSURU. AND ALSO AT: ASSISTANT PROFESSOR DEPARTMENT OF ECONOMICS GOVT. FIRST GRADE COLLEGE GUNDLUPETE TOWN-571111. (BY SRI. MANJUNATH PRASAD V, ADV.,) AND: MAHADESHWARASWAMY INFRATECH AND HOUSING DEVELOPERS PVT. LTD. SITUATED AT NO.55, 3RD CROSS 1ST MAIN, GURUKULA LAYOUT (BEHIND J P NAGARA OUTER ...PETITIONER - 3 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR RING ROAD), MYSURU-570 031. REPT. BY SRI. N.S. NANJUNDASWAMY S/O SUBRAMANYA. (BY SRI. D. SESHADRI, ADV., [ABSENT]) ...RESPONDENT THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER OF THE ATTACHMENT OF BEFORE JUDGMENT DATED 22.02.2018 PASSED IN O.S.NO.182/2018 ON THE FILE OF HON'BLE II ADDL. SENIOR CIVIL JUDGE & CJM, AT MYSURU, VIDE ANNEXURE-A & ETC. THE ORIGINAL SUIT I.A.NO.2 IN IN IN W.P. NO.48314/2018: BETWEEN: SRI. DR. KUMARA S/O VEERABHADRAPPA AGED ABOUT 42 YEARS R/AT NO.82, RAJENDRA KRUPA 3RD STAGE, D BLOCK, JP NAGAR MYSURU 570031. AND ALSO AT: ASSISTANT PROFESSOR DEPARTMENT OF KARNATAKA GOVT. WOMENS COLLEGE MANDYA 571 401. (BY SRI. V.M. PRASAD, ADV.,) AND: MAHADESWARASWAMY INFRATECH AND HOUSING DEVELOPERS PVT. LTD. SITUATED AT NO.55 3RD CROSS, 1ST MAIN ...PETITIONER - 4 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR GURUKULA LAYOUT (BEHIND JP NAGARA OUTER RING ROAD) MYSURU 570031. REPT. BY ITS MANAGING DIRECTOR SRI. N.S. NANJUNDASWAMY S/O SUBRAMANYA. (BY SRI. D. SESHADRI, ADV., [ABSENT]) ...RESPONDENT THIS W.P. IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE A WRIT OF CERTIORARI TO QUASH THE IMPUGNED ORDER OF THE ATTACHMENT OF BEFORE JUDGMENT DATED 01.03.2018 PASSED IN O.S.NO.223/2018 ON THE FILE OF HON'BLE II ADDL. SENIOR CIVIL JUDGE, AT MYSURU, VIDE ANNEXURE-A & ETC. THE ORIGINAL SUIT I.A.NO.1 IN IN THESE PETITIONS, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER: CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL ORAL ORDER W.P.No.48315/2018 is filed challenging the order dated 06.03.2018 passed on I.A.No.1 in O.S.No.241/2018 by the II Additional Senior Civil Judge and CJM, Mysuru (for short, 'the trial Court'). W.P.No.48314/2018 is filed challenging the order dated 01.03.2018 passed on I.A.No.1 in O.S.No.223/2018 by the trial Court. - 5 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR W.P.No.48313/2018 is filed challenging the order dated 22.02.2018 passed on I.A.No.2 in O.S.No.182/2018 by the trial Court. 2. Sri.Manjunath Prasad V., learned counsel for the petitioners in these petitions submits that the issues involved in these petitions are similar, hence they are clubbed together. It is submitted that respondent-plaintiff has filed the suit for recovery of money against the petitioners herein and in the said suits, he has filed an application under Order XXXVIII Rules 5 and 6 of CPC seeking for attachment of the properties before the judgment. The trial Court, even before issuing notice, passed orders on those applications without assigning any reasons. It is further submitted that the orders impugned clearly indicate that the petitioners were directed to furnish security for the suit claim on the next date of hearing and on failure of which, the order of attachment would become absolute, but by the next date of hearing, the suit summons could not be served on the petitioners. However, as per the impugned orders, the attachment became absolute. It is also submitted that the approach of the trial Court in passing the - 6 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR order of attachment before the judgment is contrary to the settled principles of law and the principles enumerated in Order XXXVIII Rules 5 and 6 of CPC. It is submitted that in the application seeking for attachment it is not indicated that the petitioners are making an attempt to dispose of their properties, which would defeat the probable decree in favour of the respondents. In the absence of any such exercise by the trial Court, the impugned orders are required to be interfered with by this Court. It is submitted that in one of the petitions i.e., in W.P.No.48313/2018, this Court has stayed the impugned order assailed in the said writ petition. 3. There is no representation for the respondent- plaintiff. 4. I have heard the arguments of the learned counsel for the petitioners and meticulously perused the material available on record. I have given my anxious consideration to the submissions advanced. 5. In all these petitions, the petitioners are challenging the impugned orders wherein the trial Court has allowed the applications filed by the respondent under Order XXXVIII Rules - 7 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR 5 & 6 of CPC. A perusal of the affidavits accompanying the said applications filed by the respondent does not indicate that the petitioners are about to dispose of the whole or any part of their properties or are about to remove whole or any part of the property from the local jurisdiction of the Court. However, the trial Court, without even providing an opportunity to the petitioners, on the first day itself has passed a conditional order of attachment on the said applications. One of such impugned order passed by the trial Court is extracted as under: "It is ordered to attach the application schedule property conditionally. The defendant is hereby directed to furnish security for suit claim on the next date of hearing. If the defendant fail to furnish security, order of attachment before judgment made absolute. Issue attachment order and notice on IA no.1 returnable by 2.06.2018" 6. The aforesaid order clearly indicates that the petitioners are directed to furnish security for the suit claim on the next date of hearing. If the petitioners failed to furnish the security, the order of attachment before judgment would be - 8 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR made absolute and be ordered for issuance of notice. The order sheet indicates that thereafter on 2-3 dates of hearing, the suit summons could not be served on the petitioners. In other words, the aforesaid order of the trial Court indicates that if the petitioners failed to furnish the security on the next date of hearing, the order of attachment would become absolute. In my considered view, the approach of the trial Court in passing an order on the applications under Order XXXVIII Rule 5 of CPC is without any reasons and without there being any satisfaction that the petitioners are likely to dispose of the property which would lead to defeat the probable decree that the respondent may obtain from the Court. In the absence of any satisfaction of the trial Court as required under Order XXXVIII Rule 5 of CPC, in my considered view, the petitions deserves to be allowed. 7. It would be useful to refer to the decision of this Court in the case of Palghar Rolling Mills (P) Ltd. Vs. Visveswarayya Iron and Steel Ltd.1, wherein paragraph Nos.8 and 9 reads as under: 1 MFA 724 c/w CRP 1258 of 1983 dated 24th July 1985 - 9 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR "8. The mandatory essentials of Order 38, Rule 5 are: (i) the Court must be satisfied by affidavit or otherwise that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him, (ii) is about to dispose of the whole or any part of his property, or (iii) is about to remove the whole or any part of the property from the local limits of the jurisdiction of the Court. Therefore, the most essential requirement of Order 38, Rule 5 is the subjective satisfaction of the Court regarding the requirements mentioned above. Order 38, Rule 5, in my opinion, 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 Order 38 Rule 5 C.P.C. 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 Order 38, Rule 5 CPC. Order 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 Section 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 Rule 5 of Order 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, Rule 5. 9. The order passed by the Court below has been extracted above. There is nothing in it to show that the Court has even bothered to go through the affidavit filed by the plaintiff. It has not even chosen to consider whether any material has been let-in by the plaintiff to show 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 his (ILR 1985 Kar 3989) - 10 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR property. Therefore, the order passed by the Court below, in my opinion, appears to have been passed in a most cavalier manner and without realising the consequences that might flow from the attachment order. The order has been passed nearly about 7 years after the amendment. The Court passing the order of attachment before judgment should bear in mind that any attachment order passed without complying with sub-rule (1) shall be void. Therefore, the Courts which are armed with vast powers, should acquaint themselves with the amendments and should scrupulously follow the mandatory requirements of law. If the Court, inspite of sub-rule (4) passes an order in a cavalier manner, such an order must be struck down in the interest of administration of justice as void. Therefore, it is concluded that the order of attachment before judgment passed by the Court below is void. Therefore, all the proceedings that have followed such a void order, will have to be struck down." 8. Keeping in mind the enunciation of law laid down by this Court in the aforesaid judgment, I am of the considered view that the trial Court has failed to consider the requirements of Order XXXVIII Rule 5 of CPC while passing the impugned orders. Absolutely no reasons have been assigned in the impugned orders. In the absence of the same, the impugned orders do not survive the scrutiny of law. Hence, I proceed to pass the following: i. Writ petitions are allowed.
Decision
ORDER - 11 - NC: 2025:KHC:21235 W.P. No.48315/2018 C/W W.P. No.48313/2018 W.P. No.48314/2018 HC-KAR ii. The impugned order dated 06.03.2018 passed on I.A.No.1 in O.S.No.241/2018; order dated 01.03.2018 passed on I.A.No.1 in O.S.No.223/2018 and the order dated 22.02.2018 passed on I.A.No.2 in O.S.No.182/2018 by the II Additional Senior Civil Judge and CJM, Mysuru, are hereby set aside. iii. The trial Court is directed to reconsider the said applications, if the respondent insists to consider the same, in accordance with law after following the mandate of law. Sd/- (VIJAYKUMAR A. PATIL) JUDGE BSR List No.: 1 Sl No.: 44