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H. P. SANDESH
Vinod Kumar Jain, S/o Late Mohan Lal Jain – Appellant
Versus
Shanthilal, S/o Late Lalchand – Respondent
JUDGMENT :
This appeal is filed challenging the order dated 30.01.2023, passed on I.A.No.1 in O.S.No.160/2021, on the file of the Principal Senior Civil Judge, Chikamagalur, dismissing the said application.
2. The factual matrix of the case of the appellants is that the appellants had filed a suit in O.S.No.160/2021 and interalia, sought for an order of attachment before judgment by filing an application under Order 38 Rule 5 of CPC. It is their case that the respondent and one Abdul Khader are the owners of the commercial property bearing number ID 21-2-3-136D/1 and assessment No.18447/12076 measuring 2840.42 sq.mtrs. situated near IDSG College, KM Road, Chikmagaluru. The property totally measures 5680.84 sq.mtrs and was auctioned by Canara Bank, Chikmagalur on 29.10.2010. The respondent and Abdul Khader purchased the entire extent of 5680.84 sq.mtrs. jointly out of which the respondent is the owner of 2840.42 sq.mtrs. Pursuant thereto, the respondent executed an agreement of sale dated 13.01.2014 in favour of appellant No.1 and his late father for the extent of 40% of the property since appellant No.1 had paid the sale consideration to the respondent at the time of purchasing the s
It is settled law that power under Order 38 Rule 5 of CPC is drastic and extraordinary power.
The court emphasized that attachment before judgment requires credible evidence of intent to obstruct execution, and failure to consider relevant documents constitutes a jurisdictional error.
A plaintiff must establish a prima facie case for attachment before judgment, ensuring no asset disposal occurs that could obstruct potential recovery, as underscored by Order 38 Rules 5 and 6 of CPC....
An application under Order XXI Rule 58 CPC is not maintainable if the applicant fails to establish a claim to the attached property and if prior proceedings have attained finality.
A claim under Order 38 Rule 10 of C.P.C is maintainable after the suit is decreed, and the attachment before judgment continues after the decree, adjudicable under Order 21 Rule 58 of C.P.C.
The court emphasizes the necessity of establishing a prima facie case before granting a conditional attachment under Order XXXVIII Rule 5 CPC.
An appeal against an order of attachment before judgment under Order 38 Rule 5 CPC is not maintainable as it is not enumerated as an appealable order under Order 43 Rule 1 CPC.
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