THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 3234 OF 2011 Dated:20-11-2014
Between:
Mohammed Abdul Majeed and two others ... PETITIONERS AND Mohammed Abdul Saleem Arif .. RESPONDENT THE HON'BLE SRI JUSTICE L. NARASIMHA REDDY CIVIL REVISION PETITION No. 3234 OF 2011
ORDER:
The petitioners filed O.S No. 695 of 2010 in the Court of II Additional Chief Judge, City Civil Court, Hyderabad against the respondent for recovery of a sum of Rs.54,55,511/-. They have also filed I.A No. 4226 of 2010 under Order XXXVIII Rule 5 CPC, with a prayer to effect attachment before judgment, of the items mentioned in the I.A. The trial Court issued notice and on receipt of the same, the respondent entered appearance and filed a counter. Through its order dated 01-04-2011, the trial Court dismissed the I.A. However, an observation was made to the effect that there is no evidence as to prima facie case, to show the liability of the respondent for the suit amount. The petitioners feel aggrieved by the observation made by the trial Court.
Heard Sri M.A.K. Mukheed, learned counsel for the petitioners and Sri Syed Ahmed Ali, learned counsel for the respondent.
The I.A filed by the petitioners is the one for attachment before judgment under Order XXXVIII Rule 5 CPC. In case, the trial Court is not satisfied that there is every likelihood of the respondent removing any item of the property from its jurisdiction, the relief can certainly be denied. However, neither in the I.A filed under Order XXXVIII Rule 5 CPC nor in any other I.A., the trial Court can express its view on the merits of the suit claim. In the instant case, the trial Court recorded a finding to the effect that no case is made out for attachment before judgment. Further, it proceeded to observe as under:
“Thus, absolutely, there is no evidence, prima facie, to show the liability of the respondent for the suit amount.”
The observation made by the trial Court is totally outside the scope of the I.A. It is only in the suit, that the Court can express its view about the liability of the party or acceptability of the claim. In an application filed under Order XXXVIII Rule 5 CPC, the Court cannot address the acceptability or otherwise of the claim in the suit.
Hence, the C.R.P is allowed and the last sentence in para 7 of the order namely, “Thus, absolutely, there is no evidence, prima facie, to show the liability of the respondent for the suit amount”, shall stand set aside. However, the dismissal of the I.A is upheld. The trial Court shall not take into account any of its observations made in the order in the I.A while disposing of the suit.
The miscellaneous petitions filed in this revision shall also stand disposed of. There shall be no order as to costs.
L. NARASIMHA REDDY, J 20-11-2014 ks