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Tulsidas Kesharlal Blyani Vs. Kasabai (Smt.) W/O Bhajanlal and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberCivil Revision Application No. 304 of 1984
Judge
Reported in1985(1)BomCR583; 1984MhLJ1007
ActsCode of Civil Procedure (CPC) , 1908 - Sections 151 - Order 38, Rule 1
AppellantTulsidas Kesharlal Blyani
RespondentKasabai (Smt.) W/O Bhajanlal and anr.
Appellant AdvocateN.S. Manudhane, Adv. for ;M.C. Shah, Adv.
Respondent AdvocateR.M. Agarwal, Adv.
Excerpt:
.....clauses are satisfied that power has to be exercised for securing the appearance of the defendant in a given suit. all these rules taken together leave no manner of doubt that once the conditions of rule 1 of order 38 are satisfied, the court is enabled to issue a warrant to arrest of the defendant for the purpose of bringing him before the court to show cause as to why he should not furnish security for his appearance. in other words, during the pendency of the suit and until the decree is satisfied, the procedural law enables the court to secure the presence of the defendant. this being plain, the order under challenge is clearly made in error. 9. thus, clearly, the order under revision not in accord with the terms of rule 1, order 38 of the code. that clearly has not been done...........defendant for the purpose of bringing him before the court to show cause as to why he should not furnish security for his appearance. in other words, during the pendency of the suit and until the decree is satisfied, the procedural law enables the court to secure the presence of the defendant. the form in annexure 'f' does not lead to any other inference, nor the provisions which permit personal arrest for the purposes of execution on which reliance was placed are indicative that for any other purpose, security can be asked for. it is only to secure the presence of the party that the machinery of these rules, being rules 1 to 4, is enacted. this being plain, the order under challenge is clearly made in error.8. the two decisions do not cover the case of the kind which is in issue. the.....
Judgment:

B.A. Masodkar, J.

1. This is the original defendant's civil revision application that questions the order made below Exhibit 23 in Special Civil Suit No. 76 of 1981. By that order, the Court below ordered that the petitioner-defendant was to furnish a solvent security to the extent of Rs. 45,000/- on or before February 21, 1984 in order to secure the respondents-plaintiffs' claim in the suit, and that in case of default, his defence would stand struck off.

2. That order came to be made upon an application that was purported to have been filed under Order 38, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as 'the Code').

3. The respondent-Plaintiffs filed the suit on August 11, 1981 on the basis of the claim that the petitioner-defendant is liable to pay a sum of Rs. 33,903.25p. because of non-payment of five deposit receipts. That claim included the claim for interest and notice charges. Along with the plaint, an application was filed under Order 38, Rule 5 of the Code for attachment of a house. An ex parte order was made that rule directing attachment. However it is admitted that no attachment could take effect as the property was already sold. Pursuant to the summons, the petitioner-defendant appeared and filed his say as well as written statement denying the liability. He filed reply to the application for attachment, but did not disclose the fact of disposal of the property. It does appear that the house property was disposed of on August 4, 1981. Thereafter, the present application, purporting to be under Order 38, Rule 1 of the Code, was filed, praying that a warrant of arrest be issued against the petitioner-defendant under that provision. The application was resisted, but eventually, the impugned order was made.

4. In this Court, Mr. Manudhane, the learned Counsel appearing on behalf of the petitioner-defendant, pointed out that the application itself was not tenable under Order 38, Rule 1 of the Code and that the order so made could not have been made under that provision. In the submission of the learned Counsel, such an order could be there only for the purpose of securing presence of the petitioner-defendant and not for the purpose of securing the claim in the suit. Similarly, the learned Counsel pointed out that no order could have been made for striking out the defence, if security was not given.

5. As against this, Mr. Agarwal the learned Counsel appearing on behalf of the respondents-plaintiffs, submitted that such an order could be made under Order 38, Rule 1 of the Code, particularly when Clause (iii) of sub rule (a) of Rule 1 of order 38 of the Code has been satisfied. He relied further to support his argument on the form available in annexure 'F' to the plaint, which ensued under Order 38, Rule 1 of the Code. Similarly, he relied on the provisions of Order 21, Rule 30 of the Code for the purposes of submitting that the Court is empowered to execute the decree by ordering arrest of the judgement-debtor. Reliance is further placed on the observations in the case of S.D. Patil v. G.S. Chemedia, : AIR1971Bom87 , and the decision of the Nagpur High Court in the case of B.B. Gupta v. M.K. Oswal A.I.R. 1954 Nag 118 in the submission of the learned Counsel, if strictly Order 38, Rule 1 was not applicable, the order could be sustainable under the facts and circumstances by section 151 of the Code. Lastly, the learned Counsel contended that no interference is called for because not only the applicant did not furnish a security but applied thrice to the trial Court for extending the time to furnish such security. It is after such grant by the Court that this civil revision application is filed. In this regard, reliance is placed on Order 39, Rule 11 of the Code whereby anyone commanded by the Court to do a particular act could be subjected to a penalty of striking out of the defence. In the submission of Mr. Agarwal, therefore, the order is within the jurisdiction and according to law.

6. Now, as far as the facts are concerned, there is hardly any dispute. It does not appear from the order that the Court below was minded to hold in favour of the respondents-plaintiffs that the petitioner-defendant deliberately suppressed the material fact with regard to the sale of `an item of the property. The order thus gives an impression that the Court below was satisfied that clause (iii) of sub-rule (a) of Rule 1 of Order 38 of the Code has been established and upon that, eventually, the order for security has been made. The submission of Mr. Manudhane that such an order could be made only for the purposes of securing the appearance is well-founded.

7. The purpose and object of Order 38, Rule 1 of the Code is to enable the Court to ask for security for such appearance Clauses (a) and (b) of Rule 1 of Order 38 of the Code are followed by the enabling power which permits the court to issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish a security for his appearance. Once the conditions laid down by these clauses are satisfied that power has to be exercised for securing the appearance of the defendant in a given suit. The other rules following Rule 1 of Order 38 of the Code also make the position clear. Rule 2 of Order 38 of the Code deals with the security. Sub-rule (2) of Rule 2 of Order 38 of the Code states that every surety for the appearance of a defendant shall bind himself, in default of such appearance, to pay any sum of money which the defendant may be ordered to pay in the suit. Thus, the appearance is secured by reason of the surety. Rule 4 of Order 38 of the Code provide for the consequences where the defendant fails to comply with the order under Rule (2) or Rule (3) and enables the Court to commit him to the civil prison. All these rules taken together leave no manner of doubt that once the conditions of Rule 1 of Order 38 are satisfied, the Court is enabled to issue a warrant to arrest of the defendant for the purpose of bringing him before the Court to show cause as to why he should not furnish security for his appearance. In other words, during the pendency of the suit and until the decree is satisfied, the procedural law enables the Court to secure the presence of the defendant. The form in Annexure 'F' does not lead to any other inference, nor the provisions which permit personal arrest for the purposes of execution on which reliance was placed are indicative that for any other purpose, security can be asked for. It is only to secure the presence of the party that the machinery of these rules, being Rules 1 to 4, is enacted. This being plain, the order under challenge is clearly made in error.

8. The two decisions do not cover the case of the kind which is in issue. The Nagpur decision in B.B. Gupta's case (supra) arose out of the proceedings taken against a surety and the construction of the surety bond and the liability of the surety arising under that bond. Upon difference between the two Judges of the High Court a third Judge held that the bond could be sustained by reason of the powers under section 151 of the Code and constructed the term in the bond as available even for enforcing the payment of amount mentioned in the bond. So is the position with regard to the decision in S.D. Patil v. G.S. Chamadia, : AIR1971Bom87 , which observes that under Rule 2 of Order 38 of the Code, the Court has a power to order either to deposit in Court money other property sufficient to answer the claim against him, or to furnish security for his appearance at any time when called upon to do so and that power could be exercised until the satisfaction of the decree.

9. Thus, clearly, the order under revision not in accord with the terms of Rule 1, Order 38 of the Code. Such an order cannot even be sustained under section 151 of the Code, for the field is governed by a specific provision. It is also not possible to upheld the order under Order 38, Rule 5 of the Code. If such orders are permitted to be made, those will provide an additional remedy to a suit or even to harass a bona fide litigant. Inspite of enacting provisions of Clause (iii) in Rule 1(a) of Order 38 of the Code, the legislature left the matter at securing the presence of the defendant and no further. The operative field of power being thus skirted by the purpose, the same cannot be augmented by reason of inherent powers. The inherent powers of the Court are in addition to the powers specifically conferred to the Court. If there are express provisions covering a particular topic, such powers cannot be exercised in that regard See, Padam Sen v. State of U.P., : 1961CriLJ322 , and Ram Chand and Sons Sugar Mills v. Kanhayalal, : [1966]3SCR856 .

10. That being the plain position, the submission that only because the present applicant applied for extension of time to give security before the trial Court, the revision application does not lie has no merit. Surely, even by consent, legality cannot be conferred upon such an order.

11. Now, it does appear that by merely setting aside this order, some prejudice is likely to be caused to the respondents-plaintiffs. No doubt, the petitioner-defendant is asserting that he has appeared in the Court and would continue to appear in the Court, but the fact remains that the respondents-plaintiffs had, in the application under Order 38, Rule 1 of the Code, made several allegations, particularly in paragraphs 3 and 4 so as to make out a case under Clause (iii) of Rule 1(a) of Order 38 of the Code No finding is recorded with regard to those allegations. The Court below has merely gone on the basis that after the issue of the order of attachment under Order 38, Rule 5 of the Code, the particular defendant suppressed the material facts with regard to the disposal of the property. For the purposes of finding out has to whether an order for furnishing security for the appearance of the petitioner-defendant should or should not be made, the Court will have to consider all the material allegations and reply thereto, in the light of the material tendered by the parties. That clearly has not been done. If a case is made out that the petitioner-defendant has disposed of or removed from the local limits of the jurisdiction of the Court his property of any part thereof with intent to delay the proceedings or to avoid the process of the Court or to obstruct or delay the execution of the decree that may be passed, the Court would then be empowered, firstly, to issue warrant of arrest, and secondly, after the petitioner-defendant appears to make an order has to why he should not furnish security for his continued appearance necessary in such proceeding. Such an order is not clearly made nor is the material considered by the Court.

12. In this view of the matter, the impugned order is set aside. The matter is remitted back to the trial Court to decide the application under Order 38, Rule 1 of the Code all afresh and according to law. That be done as expeditiously as possible. Rule absolute with cost.


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