Defendant failing to furnish security but filing counter denying allegations made in affidavit - Mechanical attachment cannot be ordered even if Defendant fails to furnish security.

Cited in 2014 (2) MWN (Cv 113

Prest

Original Print

2014 (2) MWN (Civil) 113 (Mad)

IN THE HIGH COURT OF MADRAS

R. Mahadevan, J.

CM.A. No.2241 of 2013 & M.P. No.1 of 2013.

February 28, 2014

R. Ramesh

R. Raveender

Vs.

CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908), Order 38, Rule 6-Attachment before judgment is not automatic- 'May' employed in sub cause (1) of Rule implies trial court is bound to conduct an enquiry and apply its mind before passing an order of attachment- Powers conferred under Rule is discretionary and Court must take into account affidavit in support of the Application and also the possibility of correctness of statements made therein - Vague, unspecific allegations not supported by any proof not sufficient to entitle an order of attachment before judgment. [Para 13]

CODE OF CIVIL PROCEDURE, 1908 (5 OF 1908), Order 38, Rule 5-PRACTICE AND PROCEDURE - Defendant failing to furnish security but filing counter denying allegations made in affidavit filed in support of application-property already mortgaged by Defendant even prior to alleged transaction with Plaintiff Mechanical attachment cannot be ordered even if Defendant fails to furnish security- Held, order of attachment set aside and modified to protect interests of Plaintiff, pending the Suit. [Para 16]