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P. Natarajan v/s Madurai Central Market Vegetable & Perishable Commodities Merchants, Co-ordinated Association Rep. by its President S. Manual Jayaraj

    CMA (MD) No. 292 of 2015 & M.P (MD) No. 2 of 2015
    Decided On, 02 March 2015
    At, Before the Madurai Bench of Madras High Court
    For the Appellant: AN. Ramanathan, Advocate. For the Respondent: K. Gnana Sambandan, Advocate.

Judgment Text
(Prayer: Appeal filed under Order 43 Rule 1(U) of the Civil Procedure Code, against the order dated 24.02.2015 in I.A.No.219 of 2014 in O.S.No.134 of 2014 on the file of the 1st Additional District Court, Madurai.)

1. The appellant is the defendant in O.S.No.134 of 2014 on the file of the 1st Additional District Court, Madurai. The respondent is the plaintiff in the suit. The suit was filed for recovery of money to the tune of Rs.15,70,517/- with interest.

2. The respondent/plaintiff filed I.A.No.219 of 2014 in O.S.No.134 of 2014 for attachment of the suit schedule property under Order 38 Rule 5 and Section 151 of the Civil Procedure Code. At the earlier instance, it was allowed without notice. Hence, the present petitioner has successfully challenged the same in CRP.No.2651 of 2014. This Court on 17.12.2014 allowed the aforesaid CRP and directed the Trial Court to pass order after hearing the petitioner/defendant herein. After hearing both sides, the impugned order of attachment was passed.

3. Learned counsel for the appellant has submitted that the appellant has not questioned the order of attachment and he has only wanted to modify the same to the extent, based on the undertaking given in the affidavit filed in M.P(MD)No.2 of 2015 in this appeal. He has taken me through the last three lines in paragraph 6 of the affidavit filed in support of the petition for grant of stay and the same is extracted hereunder:-

"I am even ready to give an undertaking before the Hon'ble Court that I will not dispossess the property till the disposal of the suit."

4. Today, he has produced an affidavit of undertaking filed by the appellant categorically stating that the appellant will not alienate the property till the disposal of the suit.

5. In view of the undertaking affidavit produced before this Court, I am of the view that the order dated 24.02.2015 made in I.A.No.219 of 2014 in O.S.No.134 of 2014 could be modified by recording the undertaking given by the petitioner, since the undertaking amounts to the order of injunction issued by this Court as held by me in C.Subramanian vs. N.Chockalingam Asari and another (CMSA(MD)No.6 of 2010 dated 1

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8.01.2011). It is made clear that if any alienation is made before the disposal of the suit, that will be void. The Civil Miscellaneous Appeal is disposed of in the above terms. No costs. Consequently, M.P(MD)No.2 of 2015 is closed.