This Civil Revision Petition is filed by the petitioner against the unnumbered I.A.SR of the year 2009 in I.A.No.69 of 2006 in O.S.No.6 of 2007, on the file of the Fast Track Court No.1, Srivilliputhur at Virudhunagar.
2. The respondent herein has filed the suit in O.S.No.6 of 2007, on the file of the Fast Track Court No.1, Srivilliputhur at Virudhunagar against the petitioner, one Diraviyam and the Company namely M/s.Keerthi Lakshmi Trading Company (P) Ltd. The Company has been shown as third defendant and represented by the said Mr.Diraviyam. According to the petitioner, the said Diraviyam failed to appear for the Company and since the petitioner was bed ridden due to heavy Blood Pressure, he could not appear on the date of hearing and therefore, the petitioner and the Company were set ex-parte and ex-parte decree came to have been passed on 01.07.2008.
3. Pursuant to the ex-parte decree, the respondent/plaintiff has filed the application for attachment before judgment in I.A.No.69 of 2006 in O.S.No.6 of 2007 on 29.03.2006 and the trial Court has directed the petitioner to furnish security to the tune of Rs.5,65,770/- on or before 06.04.2006, failing which the attachment of the petition scheduled property will be ordered. Since no security was furnished, the property worth about forty five lakhs has been attached and the same was made absolute on 28.04.2006.
4. According to the petitioner, after he recovered from illness he filed an application in I.A.No.27 of 2009 to set aside the ex-parte decree along with Section 5 application in I.A.No.18 of 2009 to condone the delay of 210 days in filing the above set aside application. Those two applications have been allowed by the trial Court and the petitioner has also filed written statement in the main suit. He has deposited Rs.5,66,000/- by way of Demand Draft and filed an application under Order 38 Rule 9 of the Civil Procedure Code to withdraw the order of attachment. Mr.Vallinayagam, learned counsel for the petitioner would contend that taking into consideration the deposit made by the petitioner, the trial Court ought to have passed the order of withdrawing the attachment without any enquiry as it is mandatory to pass such order under Order 38 Rule 9 of the Civil Procedure Code. But the trial Court instead of numbering the petition filed for withdrawing the order of attachment adjourned the said petition "call on" along with the main suit. He would contend that the procedure adopted by the trial Court is unsustainable and illegal.
6. The learned counsel relied upon the decision reported in Letchumanan Vs. Karuppan (1998-3-L.W. 646) and contended that under Order 38 Rule 9 of CPC, the Court shall order withdrawal of the attachment once the defendant furnishes the security together with security for the cost of the attachment. In the above decision, this Court has held thus:
"4.A perusal of the said provision shows that the court shall order the attachment to be withdrawn when the defendant furnishes the security required, together with security for the costs of the attachment, when the suit is dismissed. As stated earlier, neither the sufficiency of the security nor the genuineness of the security is doubted. In the said circumstances, the relief sought for under Order 38, Rule 9 CPC is mandatory and the Court is bound to pass a consequential order. Learned counsel for the petitioner also relies upon the judgment reported in N.R.Thiruvengadam Vs. Kaliannan (AIR 1984 Madras 112 = (1983) 96 L.W.672) Ratnam,J. (as he then was) held that the remedy provided for under Order 38, Rule 9 CPC is in the nature of an independent remedy and can be availed of by a defendant even after an order for attachment under sub-rule (1) of Rule 6 of order 38 has been made. The provision was a beneficial one intended to give an opportunity to defendants who despite an order of attachment passed against them are in a position to offer security for safe-guarding the claims of plaintiff made in the suit and to pray for a withdrawal of the order of attachment made already either over their other assets or moneys."
7. The remedy provided under Order 38 Rule 9 is in the nature of independent remedy and can be availed of by defendant even after the order for attachment before judgment has become final. Rule 9 is beneficial and intended to give an opportunity to the defendant whose assets has been attached before judgment and who is in a position to offer security for safe-guarding the plaintiff's claim.
8. In this case, the application filed by the petitioner is not entertained inspite of the fact that the deposit made by the petitioner to the tune of Rs.5,66,000/- has been brought to the notice of this Court in the affidavit filed in support of the petition which is as follows: "ehd; bra;J tUk; fl;rpf;Fk;, bra;ag;BghFk; fl;rpf;Fk; ghjfkd;dpapy; $hkPdhff; Bfl;l bjhif U.5,66,000/-w;F ehd; 23.03.2009 Bjjpa ne;jpad; Xth;rP!;, ts;spa{h; fpis tiuBthiy vLj;J (fhBrhiy vz;.289296881) mjid nj;Jld; jhf;fy; bra;Js;Bsd;."
9. Inspite of the said deposit made by the petitioner covering the entire amount together with costs of the attachment, the trial Court has not entertained the said application and not even numbered it.
10. The respondent remained absent even after service of notice and there is no representation on his behalf.
11. Having regard to the circumstances stated above, to meet the ends of justice, the Fast Track Court No.1, Srivilliputhur at Virudhunagar is directed to number the application filed to withdraw the attachment within a period of two weeks from the date of receipt of a copy of this order and pass orders in accordance with law.
With the above direction, the Civil Revision Petition is allowed. Consequently, connected Miscellaneous Petition is closed. There shall be no orders as to costs.
DP To The Fast Track Court No.1, Srivilliputhur at Virudhunagar.