Court emphasizes proper procedure under CPC, discourages misuse of Article 227
The Andhra Pradesh High Court, under the bench of Justice Ravi Nath Tilhari, has dismissed a Civil Revision Petition filed by M/s. V. Digitals against M/s. Baba Flex. The petitioners challenged a show cause notice issued for attaching their property under Order 38, Rule 5 of the Civil Procedure Code (CPC), arguing that the notice was issued mechanically without proper grounds.
In the case titled "M/s. V. Digitals v. M/s. Baba Flex," the defendants, M/s. V. Digitals, faced a property attachment notice in a suit pending in the Court of XII Additional District Judge, Visakhapatnam. The notice required them to furnish security for the suit amount, failing which their property would be attached.
Justice Tilhari, referencing the Supreme Court's decision in "Raman Tech. & Process Engg. Co. v. Solanki Traders," emphasized that the power under Order 38, Rule 5 is drastic and should be exercised sparingly. The provision should not be used to convert an unsecured debt into a secured one or to coerce defendants into settling claims. Instead, plaintiffs must adhere strictly to the rule, avoiding any misuse.
The High Court highlighted that while the petitioners could file objections to the notice before the Trial Court, bypassing the statutory remedy by directly approaching the High Court under Article 227 of the Constitution is discouraged. Article 227's supervisory jurisdiction should only be invoked in exceptional cases, not routinely.
The judgment advised petitioners to present their objections to the Trial Court, which is expected to consider them expeditiously and in accordance with law. The dismissal of the Civil Revision Petition underscores the importance of following procedural norms and utilizing available remedies under the CPC before seeking extraordinary judicial intervention.
The ruling reaffirms the legal principle that procedural shortcuts and misuse of judicial powers are not encouraged, ensuring justice through proper legal channels.
Bottom line:-
The power under Order 38, Rule 5 of CPC is a drastic and extraordinary power and should not be exercised mechanically or for coercing the defendant to settle claims. Filing a petition directly under Article 227 of the Constitution bypassing the remedy under CPC is discouraged.
Statutory provision(s): Order 38, Rule 5 of CPC, Article 227 of the Constitution of India
M/s. V. Digitals v. M/s. Baba Flex, (Andhra Pradesh) : Law Finder Doc id # 2895465
