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Mohammed Saddique Hazi HussaIn Firm Vs. Nemichand Chunni Lal JaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberS.B. Civil Revision No. 512 of 1973
Judge
Reported in1978(11)WLN88
AppellantMohammed Saddique Hazi HussaIn Firm
RespondentNemichand Chunni Lal JaIn and ors.
DispositionPetition allowed
Cases Referred & Pragji Liladhar Firm v. Prahlad Madhp Patil and Anr.
Excerpt:
.....taken by that court thereafter on the application under order 38 rule 5, c.p.c. the proceedings in civil misc. case no. 5 of 1965 were ipso facto terminated as soon as the suit was decided and no useful purpose can now be served by reviving those proceedings.;after the decree has been passed in the suit, the proceedings under order 38 rule 5, c.p.c, cannot survive and, therefore, they cannot be revived subsequently.;revision allowed. - section 2(k), 2(1), 7 & 40 & juvenile justice (care and protection of children) rules, 2007, rule 12 & 98 & juvenile justice act, 1986, section 2(h): [altamas kabir & cyriac joseph, jj] determination as to juvenile - appellant was found to have completed the age of 16 years and 13 days on the date of alleged occurrence - appellant was arrested on..........by the learned additional district judge, sirohi, dated july 5, 1973 by which he restored the civil misc. case no. 5 of 1965, in respect of proceedings under order 38 rule 5, c.p.c., to its original number and directed that further enquiry be made in those proceedings. the argument which prevailed with the learned judge was that civil misc. case no. 5 of 1965 was consigned to record on october 28, 1970 without passing any final order and as such those proceedings should be revived.2. i am constrained to observe that the learned additional district judge did not at all appreciate the nature of the proceedings tinder order 38 rule 5, civil procedure cede. under older 38, rule 5, the court is empowered, at any stage of a suit, to direct the defendant either to furnish security in such.....
Judgment:

D.P. Gupta, J.

1. This revision petition has been filed against the order passed by the learned Additional District Judge, Sirohi, dated July 5, 1973 by which he restored the Civil Misc. Case No. 5 of 1965, in respect of proceedings under Order 38 Rule 5, C.P.C., to its original number and directed that further enquiry be made in those proceedings. The argument which prevailed with the learned judge was that Civil Misc. Case No. 5 of 1965 was consigned to record on October 28, 1970 without passing any final order and as such those proceedings should be revived.

2. I am constrained to observe that the learned Additional District Judge did not at all appreciate the nature of the proceedings tinder Order 38 Rule 5, Civil Procedure Cede. Under Older 38, Rule 5, the Court is empowered, at any stage of a suit, to direct the defendant either to furnish security in such sum as may be specified in the order or to produce and place at the disposal of the court, when required, the said property or the value thereof or such portion thereof as may be sufficient to satisfy the decree that may be passed in the suit or to appear and show cause why he should not furnish security, provided the conditions specified in that provision are satisfied. Incase the defendant fails to show cause why he should not furnish security or fails to furnish security within the time allowed by the court in that behalf, then under Order 38 Rule 6, Civil Procedure Code, the Court may pass an order directing that the property specified therein or such portion thereof, as maybe sufficient to satisfy the decree that may be pass ed in he suit, may be attached. Thus, if the conditions mentioned in Order 38 Rule 5, C.P.C., are fulfilled, then the court hearing the suit is empowered, at any stage of the suit, to direct the defendant either to furnish security or to how cause why he should not furnish such security & in the event of his failure to do so, an order under the provisions of Order 38 Rule 6, C.P.C. as may be passed, directing the attachment of the property or a portion thereof as may be sufficient to satisfy the decree that may be passed in the suit.

3. In the present case, the plaintiff filed a suit No. 25 of 1965 for the recovery of Rs. 44,500/ against the firm M/s. Mohammed Saddiq Hazi Hussain and its partners on June 4, 1965. Along with the suit, the plaintiff field an application under Order 38 Rule 5, C.P.C. The defendants appeared and they gave an undertaking that they would not sell or mortgage their ?immoveable properties. Moreover, one Maganlal executed a bond to the effect that if the stock of charcoal referred to in the application of the plaintiff under Order 38 Rule 5, C.P.C. was found by the court to be attach able and in case the court directs the defendants to furnish security, the ho would deposit in court a sum of Rs. 10,000/- if the defendant fails to file security in pursuance of the order of the court passed under Order 38 Rule 5 C.P.C. The proceedings under Order 38 Rule 5, CPC were taken in Civil Misc. Case No. 5 of 1965. After the aforesaid undertaking was given by the defendants and Maganlal executed the aforesaid bond on June 5 1965 no further order was passed by the court in the cassia accordance with the -provisions of Order 38 Rule 5, C.P.C. or under Rule 6 of the said Order The court could have either called upon the defendants to furnish security in such sum as it might have specified in the order, to produce and place at the disposal of the court, when required, the properties specified therein or the value thereof or such portion thereof as may be sufficient to satisfy the decree that may be passed in the suit or the court could have proceeded to attach the property under Order 38 Rule 6, C.P.C. But no thing of the kind was done in this case.

4. On October 28, 1970, the suit was decreed as against the firm Mohammed Saddique Hazi Hussain but was dismissed against its partners. On that very day, the trial court passed an order in Civil Misc. Case No. 5 of 1965 that the said case may be considered to have been disposed of as the suit No 25 of 1965 was decreed on that day. It is in respect of the aforesaid order dated October 28, 1970 passed in Civil Misc. case No. 5 of 1965 that it has been held by the learned, Additional District Judge that as no final order was then passed in that case and so the Misc. Case No. 5 of 1965 be restored' to its original number. But it appears that the learned Additional District Judge completely lost sight of the fact that any rider under Order 38 Rule 5, C.P.C. or for that matter even an order under Order 38 Rule 6, CPC, could be passed only during the pendency of the suit Once the suit was either dismissed or decreed, the proceedings for attachment before judgment automatically came, to an end. The order passed by the trial court on October 28, 1970 was perfect justified in the circumstances of the case because the suit was decreed and t no further proceedings could have been taken by that court thereafter on the application under Order 38 Rule 5, C.P.C. The proceedings in Civil Misc. Case No 5 of 1965 were ipso facto terminated as soon as the suit was decided and no useful purpose can now be served by revving those proceedings. The suit was decreed en October 28, 1970 and thereinafter the court is not empowered to pass any order under. Order 38, Rule 5, or even under Order 38, Rule 6, C.P.C. in that case as such an order could be passed at any stage of the suit but not after the suit itself was disposed of.

5. Learned Counsel for the petitioner has referred to the decisions in Beni Mahto and Anr. v. Chaturgun San AIR 1937 Patna 245 & Pragji Liladhar Firm v. Prahlad Madhp Patil and Anr. AIR 1935 Nagpur 222 in support of his contention. In Beni Mahto's case AIR 1937 Patna 245, the question was as to whether an objection it respect of the attachment of the property attached, before judgment could be raised during execution proceedings and it was held, that such an objection could be preferred after the decree was passed. But in tint case, the question related to an application under Order 38 Rule 8, CPC and an order of attachment had already been passed during the pendency of the suit under the provisions of Orders 38 Rule 6, CPC It was held in that case that if an objection is not raised under Older 38 Rule 8, CPC, a claim petition under Order 21 Rule 58 CPC would still be maintainable. Thus Sent Mahto's case AIR 1937 Patna 245 has no application to the facts of the present case because no order under Order 38 Rule 5, CPC, or Order 38 Rule, 6, CPC, has. been passed in, this case, as I have already pointed out above. The decision in Pragji Liladhar's case AIR 1935 Nagpur 222 is also to the same effect as in that case also a claim petition under Order 21 Rule 58, CPC was filed in a case of attachment before judgment and the plea that, no objection under Order 38 Rule 8 having been raised, a claim petition under Order 21 Rule 58 CPC was not maintainable, was held to be untenable. It was observed in that case that if the suit is dismissed, the attachment before judgment would be discharged and taken it would not be necessary for the person, who has a claim to the property attached before judgment, to prefer any claim at all and so an objection petition under Order 21 Rule 58 was not barred, even in cases where the property was attached before, judgment This case, therefore, is also not relevant to the question raised before me.

6. In my view, after the decree hap been passed in the suit, the proceedings under Order 38 Rule 5, CPC, cannot survive and, therefore, the cannot be revived subsequently. In the result, the revision petition is allowed. The order pissed by the learned Additional District Judge, Sirohi, dated July 5, 1973, is set aside and the application for restoration in respect of Civil Misc. case No. 5 of 1965 is dismissed, The parties are, however, left, to bear their own costs.


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