1. The defendants in the suit are the appellants in this civil miscellaneous appeal. The respondent is the plaintiff in the suit. The plaintiff, in main, has laid the suit for recovery of the price of the land and other incidental charges, resiling from the sale in his favour, on the ground of defect in title. Pending the suit, he sought for an attachment before judgment of five items of immovable properties. The defendants contested that application and in spite of such contest, the court below deemed it fit to order attachment before judgment of item 1 of the immovable properties. This appeal is directed against the order of the court below.
2. Mr. R. Gandhi learned counsel for the defendants, would submit that apart from bare allegations that the first defendant is bent upon secreting his assets to defeat and delay the suit and that the plaintiff came to know about the manoeuvres on the part of the first defendant through one Jagannathan, Mundy, Karur, no attempt was made to substantiate before the court below these allegations, and the court below has not even adverted to the question as to whether these allegations require acceptance and hence, the orders passed by the Court below cannot be sustained.
3. I have been taken through the fair order of the court below and I am inclined to agree with the submissions made by Mr. R. Gandhi, learned counsel for the defendants.
4. A mechanical adaptation of the language of the relevant provision of the Civil P.C., hereinafter referred to as the Code, namely, O. XXXVIII, R. 5 thereof would not suffice the purpose. There must be positive and definite material on the two points set out in O. XXXVIII, R. 5 of the Code, 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 passed against him. An attachment before judgment is not a process to be adopted as a matter-of course. The suit is yet to be tried and the defence of the defendant is yet to be tested. The plaintiff only stands a prima facie chance of success in the suit. At this nebulous juncture, an extraordinary relief is being sought for by the plaintiff. This relief could be granted only if the conditions for its grant, as per the provisions of the Code, stand satisfied. This process is never meant as a lever for the plaintiff to coerce the defendant to come to terms. Hence utmost caution and circumspection should guide the court. The court must advert to the provisions of the Code in this regard, advert to and investigate the allegations thrown against the defendant, satisfy itself that a case for attachment before judgment has been made out and then pass the requisite order. These principles have come to be recognised as mandates to the Court and if the Courts act in breach thereof, such an order of the Court will have to be ignored as the result of dereliction of duty.
5. In the present case, the plaintiff is stated to have-filed an affidavit of one Jagannathan on the question of apprehended alienations to defeat and delay the execution of any decree which may ensue against the defendants. Nothing is disclosed and much less, the Court below has discussed as to the credentials of the said Jagannathan to speak about the material averments and the persuasive or evidentiary value of such averments. Furthermore, the Court below has not given a finding that the apprehension of the plaintiff that the first defendant is about to dispose of his properties with a view to defeat and delay the claims of the plaintiff requires acceptance. This certainly will not be a proper exercise of the extraordinary power as contemplated under O. XXXVIIL R. 5 of the Code. Ratnam J. in Pappammal v. Chidambaram, : AIR1984Mad70 has also taken note of the rule for that the Court must be satisfied from the particulars made available that the defendant is about to dispose of the whole or any part of his property with a view to defeat and delay the claims of the plaintiff. I do not find that the requisite satisfaction has been expressed in the fair order of the Court below. Bare allegations, as stated above, would not suffice the purpose. In this view, I find that the orders passed by the Court below cannot be sustained and they require quashing in appellate jurisdiction.
6. My attention is also drawn to the fact that even at the time of filing of the suit, the defendants have taken notice of the application for attachment before judgment and the first defendant himself has made an endorsement that he will not alienate the properties till the disposal of the petition. Mr. R. Gandhi learned
counsel for the defendants, states that his clients will stand by the endorsement, which could enure till the disposal of the suit. Is also recorded. Accordingly, the appeal , is allowed. No costs.
7. Both the counsel representing the parties state that the suit itself can be expedited The court below will take up the suit and dispose it of expeditiously, of course, subject to priorities for very old suits.
8. Appeal allowed