Skip to content


Hari Shankar Vs. Bhoori Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtDelhi High Court
Decided On
Case NumberCivil Revision Appeal No. 570 of 1973
Judge
Reported in11(1975)DLT159
ActsCode of Civil Procedure (CPC), 1908 - Order 38, Rule 5
AppellantHari Shankar
RespondentBhoori Devi
Advocates: R.P. Jain and; Sultan Singh, Advs
Excerpt:
.....out for issue of a serious order like attachment before judgment and even the provisions of sub-rule (2) of rule 5 of order 38 were not complied with and the present omnibus order has been passed requiring the petitioner to furnish security and failing which the attachment of the jewellery in his shop was ordered. it was pleaded that sub-rule (2) mentioned above was mandatory and in any case no requirement of the provisions of rule 5 of order 38 have been satisfied in the present ease. (5) it goes without saying that the jurisdiction of courts in attaching property before judgment is of an extraordinary nature and has to be exercised sparingly and strictly in accordance with the procedure prescribed by the code the court has to be satisfied on two points, namely, (1) that the..........out for issue of a serious order like attachment before judgment and even the provisions of sub-rule (2) of rule 5 of order 38 were not complied with and the present omnibus order has been passed requiring the petitioner to furnish security and failing which the attachment of the jewellery in his shop was ordered. it was contended that neither in the application nor in any other schedule any value or description of the property sought to be attached was at all given. it was pleaded that sub-rule (2) mentioned above was mandatory and in any case no requirement of the provisions of rule 5 of order 38 have been satisfied in the present ease. (5) it goes without saying that the jurisdiction of courts in attaching property before judgment is of an extraordinary nature and has to be.....
Judgment:

Yogeshwar Dayal, J.

(1) This is a petition for revision against the order of the trial court dated 28th July, 1973, holding that the plaintiff has proved the case for attachment before judgment and has allowed an application dated 11th September, 1972, directing the defendant petitioner to furnish security in the sum of Rs 15,000/ by 20th August, 1973, and Failing in it, the petitioner's property mentioned in the application that is jewellery at his shop situated at Bhiwani worth Rs. 15,000.00 was to be attached before judgment. The defendant petitioner being aggrieved has come to this .Court for setting aside the afore- said order. To appreciate the contentions of the parties, it is necessary to state a few facts.

(2) On 11th September. 1972, the present suit was filed for recovery of Rs. 10,8'00.00 under the sumnury procedure of Order 37 of the Code of Civil Procedure, and along with it the aforesaid application for attachment bifore judgment was also filed under Order 38 Rule 5 of the Code of Civil Procedure. On the defendant-petitioner being served, he filed an application on 21st September for leave to defend the suit and contended that the document on which th3 suit had been filed is not a negotiable instrument and prayed for relief being granted unconditionally to defend the suit. The trial court by order dated 27th September, 1972 granted leave to the petitioner to defend the suit. The leave was, however, granted conditionally on his giving security for the sum of Rs. 11,000.00 and if the security was not furnished the leave was deemed to have been declined. Sin-:e the defendant-petitioner was asked to furnish security on the application to seek leavs to defend the suit. the trial court directed that the plaintiff respondent's application under Order 38 Rule 5 need not be decided at this stage. The defendant- petitioner, however, challenged the aforesaid order dated 27th September, 1973 by way of resivision petition (CR. 453/72) and this Court on 5.1.1973 admitted the revision petition and further ordered that the proceedings for furnishing security are stayed but the proceedings in the application under Order 38 Rule 5 may be continued, whereupon the defendant-petitioner filed his written statement on or about 19th February, 1973. However, soon thereafter in February 1973.the plaintiff-respondent filed an amended plaint basing his suit on the original cause of action rather than on the negotiable instrument. In the amended plaint, the plaintiff resp. pleaded that the resp. on 11.12. 1970 took loan of Rs. 15,000.00 and executed the document dated 11.12.1970 and the loan was to carry interest of 7'% per annum and the loan was to be discharged in Installments of Rs. 1000.00 each every month with effect from 11th January, 1971 It was further pleaded that the respondent had so far paid only five Installments of Rs 1000/ fromJanuaryl9/l toMay l971 but has failed to pay any subsequent Installment and thereforee the whole of the balance amount has become due in terms of the document dated 11th December, 1970. The balance amount was of Rs 10.000.00 towards principal and Rs. 800.00 as interest. The defendant petitioner filed a written statement pleading that the bond was without consideration. It was further pleaded that sometime earlier up to 31st March, 1970, the petitioner had been carrying on business along with the plaintif's deceased husband, Shri Ghisilal under the firm name M/s Ghisi Lal Jewellers, at Jaipur but the said firm was dissolved on 31st March, 1970 but for commercial expediency the petitioner was shown as sale/commission agent. It was further pleaded that the said Ghisilal unfortunately expired about the time of Diwali in 1970 and after the dissolution of the firm, the petitioner started his own business in the month of April 1970 in partnership with one Rajesh Kumar Goyal in the name of M/s Kamal Jewellers, Shahid Market, at Bhiwani, which firm continued till July 1971 and thereafter the petitioner had been carrying on his business as a sole proprietor of M/s. Kamal Jewellers, Shahid Market, Bhiwani. It was further pleaded that the above said Ghisilal was also having his own. shop named 'Ghisilal Jeweller? at Bir Bazar, Triuchirapally and after the petitioner separated from the Jaipur firm and till Shri Ghisilal expired, the petitioner had been purchasing goods that is Synthetic stones etc. on credit from the said Shri Ghisilal. It was further pleaded that in the month of December, 1970, the defendant-petitioner came to Delhi in his business connection and on pursuation of two common friends, Madan Lal and Kimat Rai, agreed that till the accounts of credit purchases made by the defendant-petitioner were finally settled, the petitioner may pay Rs. 1000.00 per month for four or five months and by then the accounts could be finalised and settled and it was towards the balance, if any, to be found due after the settlement of accounts that the Installments of Rs. 1000.00 per month were tentatively fixed to be paid because it was expected that the amount due would be finalised within four or five months and in order to show his bonafides the defendant-petitioner agreed to sign the alleged deed by way of display of his extreme bonafides as well as by way of collateral and contingent security for finally paying of any amount that may be found outstanding to be paid by the defendant to the plaintiff towards the balance of credit purchases made by the defendant from the plaintiff's deceased husband, and thereforee, as a matter of fact, no amount of Rs. 15,000.00 in cash was taken as loan or advance from the plaintiff by the defendant-petitioner Accounts were finally settled and nothing now remained due to be paid by the defendant- petitioner and the suit on the basis of the alleged bond was thereforee not maintainable and was liable to be dismissed. It was further pleaded that the plaintiff did not return the alleged bond on the pretext of having misplaced some where.

(3) In the application which was filed under Order 38 Rule 5, it was pleaded by the plaintiff respondent that the defendant was in possession of sufficient assets i e. Jewellery etc. in his shop .situated at Shaheed Bhagat Singh Market, Bhiwani. It was further pleaded that trie defendant petitioner was about to remove or otherwise part with possession Or transfer to someone else his aforesaid assets kept by him in his aforeaaid business premises as also of other costly Jewsllary items and precious/semi precious stones kept by him at his residence at Bhiwani. The said application was also supported by an affidavit of Shri Trilok Chand, son of the plaintiff. The petitioner objected to the attachment before judgment and pleaded that no definite evidence had been cited to satisfy the court that the transfer or disposal of his assets was designed with a view to obstruct or delay the execution of any decree that may be passed against the plaintiff, nor did the application itself disclose any ground of belief or the source of informition. It was again pleaded that originally the application was filed along with the suit which was alleged to be based on negotiable instrument but the plaintiff of his own amended the plaint since' then. On merits the averments made in the application were denied as baseless and unfounded and it was pleaded that the petitioner was in a sufficiently good financial position and was commanding good credit and reputation in the business market and the allegations of the plaintiff were maliciously false and misleading, and the defendant would suffer irreparable loss of property and reputation if the plaintiff respondent's apilicition was granted. A reply was also submitted by affidavit of the defendant The trial court after noticing the contention of the parties and after noticing the essential requisits before an order under Order 38 Rule 5 of the Code of Civil Procedure is passed, proceeded to observe that the plaintiff respondent's application was supported by the affidavit of his son, Trilok Chand. According to him it was stated that he had gone to Bhiwani on 10th September. 1972, with a view to prevail upon the defendant-petitioner to repay the amount due to his mother but he refused. It was also stated in the aforesaid affidavit that the plaintiff would not be able to recover the amount from the defendant as the defendant would soon transfer all his assets in business to someone else. After noticing the said avernment made in the affidavit of Shri Trilok Chand, the trial court assumed that the said allegations had gone unrebutted and thereforee a case was made out for issue of appropriate orders under Order 38 Rule 5.

(4) The learned counsel for the defendant-petitioner has urged that no case was at all made out for issue of a serious order like attachment before judgment and even the provisions of sub-rule (2) of Rule 5 of Order 38 were not complied with and the present omnibus order has been passed requiring the petitioner to furnish security and failing which the attachment of the jewellery in his shop was ordered. It was contended that neither in the application nor in any other Schedule any value or description of the property sought to be attached was at all given. It was pleaded that sub-rule (2) mentioned above was mandatory and in any case no requirement of the provisions of Rule 5 of Order 38 have been satisfied in the present ease.

(5) It goes without saying that the jurisdiction of courts in attaching property before judgment is of an extraordinary nature and has to be exercised sparingly and strictly in accordance with the procedure prescribed by the Code The court has to be satisfied on two points, namely, (1) that the defendant is about to dispose of the whole or part of his property and (2) that the disposal is with the intention of obstructing or delaying the execution of any decree that may be paosed against him. There has to be definite evidence on these points and not merely vague allegations. An order of the court without proper investigation of the allegations constitute a grave dereliction of duty. The fact that the defendant is in uncertain circumstances and is in acute financial and embarrassment is a relevant circumstance but is not by itself sufficient. Again the fact that the plaintiff may have cope just claim against the defendant will not entitled him in law to have an order of attachment before judgment. At the same time before exercising jurisdiction under rule 5, the Court should satisfy itself of the practical certainty of the plaintiff's success and of the existence of a grave danger and of a real fear that a dishonest defendant, undoubtedly liable, is making away with the probable fruits of the judgment and for this purpose it is not sufficient to merely allege that defendant is likely to dispose of the property. For a defendant like the present petitioner who is carrying on jewellery business, the disposal of the assets of such business is likely in the day to day conduct of the business and a mere averment in the affidavit that the defeadant is disposing of the assets does not show that the disposal of the assets is with a view to obstructing or delaying the execution of any decree that may be passed against him. It is clear from the provisions of sub-rule-(2) that the provisions of subrule (2) are mandatory I find from the application that no particulars of the J property sought to be attached, either by description or value, have been given and merely a discription of the 'jewellery of the shop' is not sufficient compliance for the purpose of sub-rule (2) of Rule 5 of Order

38.The result of improper description is riot difficult to foresee. In case of failure to furnish security, a warrant of attachment has to be issued which for necessity has to specify the particular property sought to be attached. If the application is vague, the warrant of attachment will not be executed. Again, the particulars of the property and specific value thereof in acase like jewellery are very necessary because the plaintiff has to find out which of the items is of proper value for his purposes. In the circumstances, it is imperative for the plaintiff to give proper particulars of the property sought to be attached. In Hari Bakhsh v Babu Lal Bhide J. observed as follows:

'THErule requires the applicant to 'specify the property to be attached and the estimated value thereof'; and serurity can only be taken for producing and placing at the disposal of the court such property or the value of the same or such portion thereof a- may be sufficient to satisfy the decree. In the present instance, the applicant has not specified any property and has applied generally for security being taken for satisfaction of any decree that may be passed against the respondent No such application seems to me to fall within the scope of O 38, R. 5 of the Code of Civil Procedure.'

(6) The present case falls within the four corners of the ratio of the aforesaid judgment of Bhide J The learned judge further observed that rule 5 contemplates attachment of property which the defendant is about to dispose of or remove from the jurisdiction of the Court. In the present instance, Mr. Sultan Singh, learned counsel for the defendant urged at the bar that the petitioner has already disposed of most of the jewallery and this again shows what loss or harm can occur by vague claim of the description of the property sought to be attached in the said application. In the present case the description was most vague and incomplete and totally in disregard of the provision of sub-rule (2) of Order 38, Rule 5. Mr. Sultan Singh, further urged that in practice in the courts below, full particulars of the property sought to be attached are only furnished after conditional order of security having been passed and on the failure of the defendant to comply with it, plaintiff normally file a list of the property-with its true description and value along with the process fee. However, this alleged practice appears to be totally in disregard to the clear provisions of law and cannot be permitted to go on. As the security is to be furnished for the production before the Court or the payment of the value of the same or such portion thereof as may be sufficient to satisfy the decree, thereforee full particulars of the property and its value sought to be attached must be specified in the application itself and not after the passing of the conditional order for furnishing security. When the present revision petition was filed in this Court the learned Singh Judge of this court while admitting the revision petition had also ordered for staying the attachment during the pendency of the revision petition and that order was confirm by order dated December 5, 1973 by Sachar J. after hearing both the parties. I am in full agreement with the view expressed by Bhide J. in the aforesaid case of Hari Bakhsh (supra). Normally, such orders like attachment before judgment are purely discretionary orders but the discretion has to be exercised after following the prescribed procedure and since the consequences of order of attachment before judgment are very serious, it is essential that the manadatory procedure of the rule be strictly complied with. As no description or value of the property sought to be attached is given in the applica ion, I have no option but to set aside the impugned ordir. The case squarely fails within clause (c) of section 115 of the Code of Civil Procedure which gives power to the High Court to interfere in revision with order of the court below if subordinate court appears to have exercised its jurisdiction illagally or with material irregularity. The result is that the present revision petition is allowed and the order dated 28th July, 1973, is set aside. The parties are, however, left to bear their own costs in the present revision petition.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //