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Manmatha Nath Sett Vs. Nagendra Nath Bhattacharjya and Purna Chandra Das and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal855,94Ind.Cas.880
AppellantManmatha Nath Sett
RespondentNagendra Nath Bhattacharjya and Purna Chandra Das and anr.
Excerpt:
civil procedure code (act v of 1908), order xxxviii, rule 6 - attachment before judgment--past conduct of defendant. - .....which the learned subordinate judge has apparently relied to show that defendant no. 1 is about to dispose of his property is a bare statement of the plaintiff's son on affidavit. he states on affidavit that he believes that the defendant is about to dispose of his property through two persons bhusan chandra das and mani lal chatterjee. no details whatever are given beyond this bare statement. it is not clear who these persons are or where they reside. the learned subordinate judge has also relied on the fact that some three or four years ago the defendant and his father borrowed a sum of rs. 25,000 and mortgaged their properties to do so. it maybe here pointed out that the mere fact that the defendant in the past mortgaged his property or otherwise disposed of it would not be in itself.....
Judgment:

Cuming, J.

1. This is an appeal against an order of the learned Subordinate Judge of 24-Perganahs Mr. B. K. Dutt ordering under Order XXXVIII, Rule 6, C. P. C, that the property of defendant No. 1 in a certain money suit should be attached before judgment. To justify an order under this rule it is necessary that the Court should be satisfied that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. Now the evidence on which the learned Subordinate Judge has apparently relied to show that defendant No. 1 is about to dispose of his property is a bare statement of the plaintiff's son on affidavit. He states on affidavit that he believes that the defendant is about to dispose of his property through two persons Bhusan Chandra Das and Mani Lal Chatterjee. No details whatever are given beyond this bare statement. It is not clear who these persons are or where they reside. The learned Subordinate Judge has also relied on the fact that some three or four years ago the defendant and his father borrowed a sum of Rs. 25,000 and mortgaged their properties to do so. It maybe here pointed out that the mere fact that the defendant in the past mortgaged his property or otherwise disposed of it would not be in itself a sufficient ground for an order under Order XXXVIII, Rule 6. What we are concerned with is the present conduct of the defendant and the Court must be satisfied that he is now about to dispose of his property with the intention of delaying and obstructing any decree that the Court might pass against him. I am not satisfied on the evidence that he is about to dispose of his property. As I have pointed out the only evidence is the affidavit of the plaintiff's son. No further evidence has been produced. It is to be noted that in the affidavit it is stated that the statements made in paras. 1, 2, 3 and 4 are true to the knowledge of the deponent and all the remaining statements are true according to his information, enquiry and belief. The most import-ant paragraphs in this affidavit are paras. 6 and 7 in which he alleges that the defendant is trying to dispose of his property; and, therefore, this portion of his statement is true according to his information, enquiry and belief. He does not inform us as to the sources of his information, enquiry and belief. Therefore this affidavit by itself is not sufficient to satisfy me that the defendant No. 1 is about to dispose of his property. As against this affidavit we have the denial of defendant No. 1. I am not, therefore, satisfied that the Court was justified in passing the order for attachment before judgment.

2. The appeal must, therefore, succeed and is decreed with costs. The order of the lower Court that defendant No. 1's properties (which are properties Nos. 1 and 3 and to which the appeal has been confined) should be attached before judgment must be discharged. Hearing-fee of this appeal is assessed at five gold mohurs.

Ghose, J.

3. I agree.


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