Pasi Sanyasi versus Pasi Suribabu - Order No: 1

IN THE COURT OF THE PRINCIPAL JUNIOR CIVIL JUDGE :: BHEEMUNIPATNAM

Present : Smt.P.Vijaya, Principal Junior Civil Judge, Bheemunipatnam.

Tuesday, the 10th day of August, 2021.

I.A.55/2021 in O.S.31/2021

Between :

Pasi Sanyasi, S/o late Pasi Thatha, Hindu, aged about 52 years, residing at Jayantvani Agraharam, Bheemunipatnam Mandal, Visakhapatnam District.

. . . Petitioner/Plaintiff

And :

Pasi (Pachi) Suribabu, S/o late Ramulu (Dasudu), Hindu, aged about 53 years, residing at Jayantvani Agraharam, Bheemunipatnam Mandal, Visakhapatnam District.

. . . Respondent/Defendant

This petition is coming on 09-08-2021 for hearing before me in the presence of Sri.K.Appa Rao, Advocate for the Petitioner and of Sri.N.V.Harsha Varadhan, Advocate for the Respondent and the matter having stood over for consideration till this day, this Court delivered the following :

O R D E R

1. Petitioner/Plaintiff filed the petition U/Or.XXXVIII Rule 5 of C.P.C. to order for conditional attachment of the petition schedule property before passing judgment in case of failure of respondent to furnish sufficient security for the suit claim.

2. The petitioner/plaintiff averred in the petition affidavit that he filed the suit against the defendant for recovery of money on the strength of promissory note executed by defendant. He further averred that the respondent borrowed an amount of Rs.4,20,000/- from him on 27-10-2018 for the purpose of his family expenses and to clear his sundry debts and executed the promissory note on the same day agreeing to repay the same together with interest @24% p.a., but subsequently, he failed to discharge the same, in spite of repeated demands. He further averred that from reliable sources he came to know that defendant is trying to sell away immovable petition schedule properties. Except the petition schedule properties, defendants are not having any other movable or immovable

properties, if the same is sold, petitioner cannot realize the decreetal amount. Hence, petitioner prays to order for conditional attachment of the petition schedule property pending disposal of the suit.

3. The respondent/defendant filed counter denying the material averments averred in the petition affidavit and contended that petitioner has come to Court with unclean hands in as much as he has committed an act of perjury by making false statements under oath in the affidavit with the ulterior motive of misleading the Court and trying to gain an undue advantage to the detriment of the respondent and the petition is not maintainable neither under law nor on facts and liable to be dismissed in limini and exemplary costs needs to be imposed on petitioner for trying to gain an unwarranted sympathy by resorting to false statements. The respondent further contended that he have been impleaded as defendant in the above suit and the petitioner made false claim by filing the suit which is tantamount to playing fraud with Court and the petitioner is misleading the Court by relying on fabricated promissory note which was obtained from third parties. The respondent submitted that he never executed any promissory note or had never entered into any business transaction with petitioner and the petitioner claim is vague and petitioner failed to explain how he arrived at such gigantic figure of Rs.6,44,840/- and petitioner is put to strict proof to furnish the private loan statements and bank account statements along with source of his income and capacity to lend such a huge amount to a person of his capacity who has no source of income to repay if at all he advance loan from such unlicensed and fraudulent money lenders and in terms of the Money Lenders Act, a money lender is supposed to maintain statement of account and is supposed to issue receipts to the borrower. The respondent further submitted that the suit schedule property in schedule-1 does not belong to him as he do not own any property with such measurements as shown in schedule-1 and the

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schedule-2 does not belong to him and it belongs to Hindu religious endowment of the village deity and petitioner neither issued any legal notice through his counsel nor made any personal requests and he came to know about the suit debt only after the receipt of suit summons, as such there are no merits and bonafides and the same is liable to be dismissed.

4. Heard the counsel for petitioner and the counsel for respondent through video linkage blue jeans app.

5. Now the point for determination is :

Whether the petitioner/plaintiff is entitled for the relief as prayed for ?

6. Point : On perusal of the entire record and also petition and counter, it shows that the petitioner/plaintiff came up with this petition along with suit and on 28-01-2021 this Court issued conditional attachment of the petition schedule property if the respondent/defendant fails to furnish security equivalent to the suit amount of Rs.6,44,840/- within seventy two hours from the date of receipt of notice; and on 17-02-201, vakalat was filed for respondent; and on 23-07-2021 counter was filed by the respondent, but the respondent did not obey the orders passed by the Court and did not furnish security. Even taking into consideration the contention of the respondent that petition schedule-1 property does not belong to him as he do not own any property with such measurements and the petition schedule-2 property does not belong to him and it belongs to Hindu religious endowment of the village deity, if it is so even if the properties are attached no loss will be caused to the respondent and if the contention of the respondent is right, the correct person comes into light at the time of execution proceedings. So also the other contentions, capacity of petitioner to lend such a huge amount to a person of respondent capacity who has no source of income to repay and petitioner is misleading the Court by relying on fabricated promissory note which was obtained

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from third parties are the points to be decided only after fully-fledged trial. But at this stage the respondent/defendant did not put forth any documentary proof to defend himself that the schedule properties does not belong to him nor he is trying to sell away immovable petition schedule properties. So also no other person filed any piece of document claiming that the petition schedule property belongs to him. In addition to that, the petitioner appended the schedule-1 and schedule-2 property details, if at all the version of the respondent is correct that the schedules-1 and 2 does not belong to him, then it is the burden of the petitioner to bear the consequences. Moreover, the suit is at the stage of interlocutory application and in order to prove the said facts, it is not the stage, but admittedly, the respondent did not submit any security for the suit claim to the satisfaction of the Court inspite of receive notice in this petition. But, if the version of the petitioner is true that in order to defraud the creditors the respondent is trying to alienate the petition schedule property and if the same is turned into action it will lead to multiplicity of proceedings and the petitioner will be left empty handed despite of decree of the suit in his favour and he will be unable to realize the fruits of the decree. Already, this Court issued conditional attachment before judgment subject to submission of the security to the satisfaction of the suit claim after receiving of notices within 72 hours, but the same was not done. Under that circumstances, when there is no security, the attachment shall be made absolute.

7. In the result, the petition is allowed with costs. The attachment was issued before judgment is made absolute.

Typed to my dictation by Stenographer Grade-II, corrected and pronounced by me in the open Court, this the 10th day of August, 2021.

Sd/- P.VIJAYA PRINCIPAL JUNIOR CIVIL JUDGE, BHEEMUNIPATNAM.

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