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Senaji Kapurchand Vs. Pannaji Devichand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberAppeals from Orders No. 23 and 26 of 1920
Judge
Reported in(1921)23BOMLR1228
AppellantSenaji Kapurchand
RespondentPannaji Devichand
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of l908), section 10, order xxxviii, rule 5-stay of suit-attachment before judgment.;when a suit has been stayed under section 10-ot the civil procedure code the court can pass interlocutory orders, such as orders for a receiver, or an injunction or an attachment before judgment. -;under order xxxviii, rule 5, of the civil procedure code, the court must be satisfied, before granting attachment before judgment, that the defendant with intent to obstruct or delay the execution of the decree 5 that may be passed against him has brought himself within the terms i of the rule it is not sumcient that there are merely vague allegations that the defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. - ..........in the said chop had been disposed of nothing was left there. besides this, the partnership shop at bellary which had dealings to the extent of two to three lacs had almost closed its business and had dwindled into a very petty concern.4. on these allegations the court should certainly have asked for further evidence before making an ex parte order calling upon the defendants to furnish security. the defendants-appellants thereafter produced ample evidence before the court that they were substantial merchants, and were not about to dispose pf their property with intent to obstruct or delay the execution of any decree that the plaintiff might obtain against them, while there was no evidence produced by the plaintiff to support the allegations which he made in march 1920, so that.....
Judgment:

Norman Macleod, Kt., C.J.

1. These appeals are from two orders made by the First Class (Subordinate Judge of Dharwar in applications by the plaintiff for attachment before judgment against the three defendants. The appellants are the first defendant and the second defendant.

2. The first point taken was that as an order has been made under Section 10 of the Civil Procedure Code staying the suit owing to the pendency of another suit between the same parties in the Court at Bellary, therefore no interlocutory order could be made in this unit. But under Section 10 it is provided that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties That does not prevent the Court from making interlocutory orders, such as orders for a receiver, or an injunction, or, as in this case an order for attachment before judgment.

3. But on the merits it is perfectly clear that there were no grounds in this case for making an order under Order XXXVIII, Rull 5. We have often had to point out that under Rull 5 the Court must be satisfied that the defendant with intent to obstruct or delay the execution of the decree that may be passed against him has brought himself within the terms of the rule; and it is not I sufficient that there are merely vague allegations that the defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, this case it is alleged against the first defendant that he was bout to recover the dues of his shop as soon as possible and to remove the articles in the shop. It is also alleged against the second defend ant that he was closing two shops one at Bellary and the other at Adoni dealing in yarn and shroff business. But of the two shops the shop at Adoni which had dealings to the extent of two or three lacs was closed about the last Divali holidays. As the property in the said chop had been disposed of nothing was left there. Besides this, the partnership shop at Bellary which had dealings to the extent of two to three lacs had almost closed its business and had dwindled into a very petty concern.

4. On these allegations the Court should certainly have asked for further evidence before making an ex parte order calling upon the defendants to furnish security. The defendants-appellants thereafter produced ample evidence before the Court that they were substantial merchants, and were not about to dispose pf their property with intent to obstruct or delay the execution of any decree that the plaintiff might obtain against them, while there was no evidence produced by the plaintiff to support the allegations which he made in March 1920, so that the original order ought to have been discharged instead of the attachment being confirmed. The Judge says: 'As regards defendant No. 1, Exhibits 32 to 37 prove the general reputation of defendant No. l's firm and nobody has a word to say against it. We want evidence as to what is going on recently there. On this point none of the deponents in Exhibits 32 to 37 can enlighten us. For none of them say if they themselves attended defendant No. l's shop at Bellary, and if so, when was it last? For all these reasons I am satisfied that the application in Exhibit 25 A was granted on good grounds'. But as we have already observed, when considering Exhibit 25 A, it is quite clear it afforded no ground whatever for issuing the order against the appellants. The appeals, therefore, must be allowed, the attachment before judgment removed and the security discharged. The appellants must get their costs of the proceedings in this Court and in the Court below.


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