Need the sincere feedback, any pitfalls with the drafted Reply along with associated sections of law to litigate plus additional points 1. I am the 1st Respondent, christian, aged 38, male ,unmarried, 10th fail. 2. My only sibling/brother passed away in may 2019 and My Father in 2002. 3. My mom/2nd Respondent, aged 76, executed Dhananishchayam deed in favour of me for a building/home(gifted to my mom by her mom) and associated land of 50 cents in may 2020 and the same had been mutated in my name. 4. In August 2020, My Sister-In-Law/1st Respondent, aged 47,graduate, got a interim attachment before judgement for the said building before family court claiming 27 Lakhs(including interest) which she had spent between the month of june 2018 and Dec 2018 for renovating( Replacing Doors and windows, entire plumbing and fittings, electrical items, 2800 sq.feet roofing, 2500 sq.feet interlock lay) the same building using 75 sovereign of gold out of 80 sovereign she got during her marriage in Sept 1999.The estimate of the renovation certified by some engineer and marriage certificate are attached with the affidavit. 5. Assume, my SIL had actually done the renovation but using a lesser amount of around 17 Lakhs, but has no substantial evidence other than withdrawals from ATM ,the estimate and (may be) some informal bills.She might not have any documentary evidence to prove the utilisation of jewels but she had been financially supported by her NRI brother. 6. Apart from this case,In Sept 2020, the petitioner/SIL had filed a partition suit for another 3 acre land which is jointly owned by mom and her late husband against my mom and myself.Unknowingly,we also filled the same partition suit against the petitioner and her daughter around the same time. -------Summary of drafted Reply to the case ------- a. I want the stay against building to be removed because the said renovation as claimed by petitioner was done when my mom was the sole owner of the building.Therefore I am not liable for anything prior even if the claim of the petitioner is proved correct.The petitioner is aware of other properties of my mom/2nd respondent. b. We claim,Replacing Doors and windows, entire plumbing and fittings, electrical items were done in 2014 utilising sales proceeds from land sale in 2013 by my mom/2nd Respondent and remaining work was done in 2016 utilising the proceeds of a bank loan taken by my mom in 2015. c. We claim the money borrowed by the late petitioner's husband(my brother) also since the petitioner is in process of inheriting properties of her husband.(Refer 6) d. We are asking the petitioner to return 16 Lakhs(8.5 Lakhs + interest), the money that been paid quarterly as instalments as licence fee towards the joint account of the petitioner and her husband for a mobile tower located in the 3 acre land under partition suit(Refer 6).Petitioner and her husband forged my signature to enter into this agreement with mobile tower company when I was in gulf.
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1) if your signature has been forged file case of cheating , fabrication of documents against your sister in law
2) if your mother has paid for renovation enclose copy of bills , payment made by mother , acknowledgment from contractor
3) burden of proof is upon petitioner to prove allegations made by her
You first file a counter to the IA filed seeking ABJ and pray to dismiss the exparte order for ABJ passed by court.
Then file the written statement denying the allegations and averments made in the suit plaint.
You can produce documentary evidences to support your pleadings in the written statement.
You discuss at length with your advocate and proceed as suggested.
The order of attachment before judgement has no legal standing and can be challenged in higher court to get such order set aside.
Court can attach property at any stage of trial before judgement. But two conditions must be fulfilled.
1. Court must be satisfied with the condition specified in CPC for this purpose.
2. Court should issue order to deposit security deposit within the time limit fixed by the court and in same order (note it is in the same order) court may direct conditional attachement.
Now you please note here that if order of attachment is made without complying with the above provision such attachment is void.
So you can accordingly challenge the said attachment. This attachment order is void provided you have not given any opportunity to deposit security deposit.
For correct reply the main petition and entire facts need to be studied in detail. Information on partly stated facts can put us in difficulty
In addition, the normal course of asking to furnish SECURITY sufficient to honour and satisfy the decree to be passed for an amount of 27 Lakhs is also there ....FYI @Kallol Majumdar Sir @Devajyoti Barman sir , Q1 ) could you please REPLY the rationale behind - "The order of attachment before judgement has no legal standing and can be challenged in higher court to get such order set aside. " ? Q2) I have not yet appeared before the Family court as the case is postponed to Feb 2021, Can I still challenge it in high court now itself ?
Once gift deed is executed duly stamped and registered you are absolute owner of property
hence Mr Barman advised that stay order can be set aside in appeal
you can appeal against said order in HC
It shall be an error of law if the court do not give you the opportunity to deposit security money (to be specified by the court) within a time limit also fixed by the court.
To err is human. So you can make an application drawing the attention of the court to this and seek necessary changes in the order if any already passed.
In default, you can go for revision of the order by high court on ground of error of law. And can also seek stay on this order.
‘An attachment before judgment is to enable the plaintiff to realize the amount of the decree, supposing a decree eventually made, from the defendant property’. This is the object of the Order 38 rule 5 of The Civil Procedure Code,1908 (herein after referred as CPC). See. Ganu Singh Vs Jangi Lal, 26 C 531. The scope and object of Order 38 rule 5 of CPC and the rules followed thereon merely to protect a plaintiff against loss arising from the defendant making away with his property pending suit. An attachment before judgment is in the nature of an interlocutory order. In Gurunadha Rao v. Gamini Krishnayya, a Division Bench of the Hon’ble High Court of Andhra Pradesh held that to be valid an attachment must be specific and clear in its purport. In Shivaraya and Others Vs. Sharnappa and Others [AIR 1968 Mysore 283], the Hon’ble Single Judge followed Bankim Chandra and Others’ case and Tavvala Veeraswamy’s case which considered such interlocutory orders to have been passed in exercise of the Court’s ancillary powers. His Lordship Dawson-Miller C. J. stated as follows :”The power given to the Court to attach a deft.’s property before judgment, is never meant to be exercised lightly or without clear proof of the existence of the mischief aimed at in the rule. (Ref. AIR 1951 Cal 156).
An order of attachment before judgment passed under Order XXXVIII Rule 5 of the Code will not survive the dismissal of a suit and it ends when the suit is dismissed after trial
If the application for attachment had been made on false or insufficient grounds, then it would be open to the defendant on notice to come up and convince the Court that there was no valid reason for ordering an attachment.
He should file a petition to set aside the orders passed in IA for attaching the property or to furnish security in an IA.
If that order is not appealed against, the question whether the attachment was applied for on insufficient grounds cannot be reopened by the party aggrieved by the order."
Yes, you can prefer a revision petition before high court now even though the main case is heard by family court on a later date.