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Jaiparkash NaraIn Singh and anr. Vs. Basanta Kumari Debi and ors. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in15Ind.Cas.604
AppellantJaiparkash NaraIn Singh and anr.
RespondentBasanta Kumari Debi and ors.
Cases ReferredAhmed Ali Muhammad v. Gladstone
Excerpt:
civil procedure code (act v of 1908), order xxxviii, rules 5, 6 - attachment before judgment--finding of essential elements necessary--opportunity of furnishing security to he given before attachment before judgment. - .....on the 22nd december 1910, for an order of attachment before judgment on the allegation that the mortgaged property would not be sufficient to satisfy the mortgage-debt and that unless an order for attachment before judgment was granted, the defendants would dispose of the whole of their property. the affidavit in support of this application was of the vaguest character. the deponent stated that he had been informed and believed that the allegations in the application were true; but the requisite details were not given gobinda mohun das v. kunja behari das 10 c.l.j. 414 : 14 c.w.n. 153 : 4 ind. cas. 380 and there was no indication of the source of information. a petition of objection was filed in answer by the defendants. they denied the truth of the allegation about the insufficiency.....
Judgment:

1. This appeal is directed against an order of attachment before judgment, under Rule 6 of Order XXXVIII of the Code of 1908. The order is assailed on behalf of the defendants-appellants on the ground that the learned Judge has not, as required by the statute, determined upon the materials on the record that they were about to dispose of the whole or any part of their property. In our opinion, this contention is well founded, and the order in question cannot be supported.

2. The plaintiffs-respondents, in an action to enforce a mortgage security, applied, on the 22nd December 1910, for an order of attachment before judgment on the allegation that the mortgaged property would not be sufficient to satisfy the mortgage-debt and that unless an order for attachment before judgment was granted, the defendants would dispose of the whole of their property. The affidavit in support of this application was of the vaguest character. The deponent stated that he had been informed and believed that the allegations in the application were true; but the requisite details were not given Gobinda Mohun Das v. Kunja Behari Das 10 C.L.J. 414 : 14 C.W.N. 153 : 4 Ind. Cas. 380 and there was no indication of the source of information. A petition of objection was filed in answer by the defendants. They denied the truth of the allegation about the insufficiency of the mortgaged security and of the statement that they were about to dispose of their properties. The Subordinate Judge thereupon recorded an order in the following terms: 'The defendants object to the attachment before judgment, but the objection is groundless; I see there is no harm in keeping the properties under attachment. The objection is disallowed and the attachment is allowed to be issued'. On behalf of the appellants, it has been argued that the order is bad as the Subordinate Judge has not found the essential elements mentioned in Rule 5 of Order XXXVIII, which must be established before an order of this description can be made. In support of this proposition, reliance has been placed upon the cases of Ramnarain v. Ezekiel 2 Hydu 183 and Shoshee Shekhoreswar Roy v. Haro Gobind Bose 13 C.L.R. 356 In the latter case, Sir Richard Garth, C.J., pointed out, with reference to the corresponding section of the Code of 1882, that the power given to the Courts to effect an attachment before judgment, should be exercised sparingly and with the utmost caution. The Court should be fully, satisfied before it proceeds under that section that the defendant is really disposing of his properties with intent to obstruct or delay the execution of any decree that may be passed against him. This view is also supported by the decision in Bishambar Sahai v. Sukhdevi 16 A. 186, in which it was pointed out that although the Court should act cautiously, it was not necessary to establish by actual sale of the property that the mortgaged property would be insufficient to satisfy the mortgage-debt. The Subordinate Judge appears to have lost sight of this principle and seems to have assumed that no harm is done to the defendants if their property is kept in attachment and that an order in favour of the plaintiffs may be made as a matter of courses. This view clearly cannot be sustained. An attachment practically takes away the power of alienation and such a restriction on the exercise of the undoubted rights of ownership, ought not to be imposed upon an individual except upon clear and convincing proof that the order is needed for the protection of the plaintiff. The Subordinate Judge has further overlooked the fact that before the order is made against a defendant, he ought to have been afforded an opportunity to (furnish security Ahmed Ali Muhammad v. Gladstone 7 W.R. 508. The order in question is, therefore, inappropriate from every point of view.

3. The result is that this appeal is allowed, the order of the 26th January 1911, discharged and the, case remitted to the Subordinate Judge in order that he may decide the questions raised on materials to be placed before him by the parties. The learned Vakil for the appellants has given an understanding on behalf of his clients that they will not deal with the properly in any way between this date and the date of the final decision of the Subordinate Judge upon this matter. We make no order as to costs.


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