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Pannaji Devichand Vs. Sennaji Kapurchand - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Judge
Reported in(1922)ILR46Bom431
AppellantPannaji Devichand
RespondentSennaji Kapurchand
Excerpt:
cicil procedure code (act v of 1908), section 10, order xxxviii, rule 5 - stay of suit--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, rule 5. we have often had to point out that under rule 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;.....within the terms of the rule; and it is not 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. in this case it is alleged against the 1st defendant that he was about 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 2nd defendant 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 shop had been disposed of nothing was left there. besides this, the partnership shop at.....
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 1st defendant and the 2nd 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 suit. 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, Rule 5. 'We have often had to point out that under Rule 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 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. In this case it is alleged against the 1st defendant that he was about 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 2nd defendant 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 shop 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. [After dealing with the facts of the case the judgment ended:]

4. 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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