In order to obtain an order of attachment before judgment under Order XXXVIII Rule 5 of the CPC, the plaintiff must satisfy the court that the defendant has acted or is about to act with intent to obstruct or delay the execution of any decree that may be passed against him, and that the plaintiff has a prima facie case in his favor.

( 1 ) BY this order I propose to dispose of this 1. A. which has been filed under Order XXXVIII Rule 5 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as the Code ), by the plaintiff against defendant No. 3 for attachment before judgment on the allegations that the plaintiff has filed a suit for recovery of, Rs. 3,97,161/12p against the defendants which has been registered as Suit No. 2013/84; that defendant No. 3 had, at all material times, been one of the partners of defendant No. 1 and had accordingly signed and executed in favour of the plaintiff various documents detailed in the plaint and as such is liable severally and jointly for the repayment of outstandings as claimed in the suit ; that the plaintiff has a good prima facie case against the defendants including defendant No. 3 : that defendant No. 3 holds a fixed deposit receipt No. DBD-23/307 dated 16th May, 1985 for Rs. 71,147/31p due on 21st March, 1987 with the plaintiff-Bank ; that in view of defendant No. 3 being liable for the suit amount, the plaintiff has a lien over the said fixed deposit receipt and the said fixed deposit being only security available against said defendant No. 3, it is liable to be attached so that decree when passed against the said defendant may be realised out of the said fixed deposit ; that the said defendant is threatening to seek premature encashment loan amount against the said fixed deposit and in that event the plaintiff/applicant will to left with no security and hence, it is requested that an order to passed for attachment of fixed deposit receipt above mentioned and defendant No. 3 should be restrained from taking any amount by encashment of the said fixed deposit receipt or by way of loan against such deposit until further orders.

( 2 ) THIS application has been opposed on behalf of defendant No. 3, inter alia, on the ground that the plaintiff has already obtained attachment of entire property of National Tile Wk Industries-defendant No. 1 of which defendant No. 3 was previously a partner and the value of said assets is above Rs. 45,00,0001- and it is open to the palintiff to get the said entire property attached; that the plaintiff has not shown that defendant No. 3 has acted or will act with intent to obstruct or delay execution of any decree to be passed subsequently and the application is misconceived ; that there is no prima facie case in favour of the plaintiff and against No. 3 ; that the plaintiff has not shown that there is any likelihood of defendant No. 3 disposing of the said property ; that defendant No. 3 was no longer a partner of defendant No. 1 and the liability of defendant No. 3 was discharged by virtue of her retirement from the partnership and by the plaintiff s subsequent conduct and express acquiescence to the said retirement ;that the answering defendant was not seeking premature encashment or loan amount against the said fixed deposit receipt and it is prayed that the application may be dismissed.

( 3 ) I have heard the learned counsel for the parties and have gone through the file and after giving my considered thought to the matter before me, I have come to the following findings.

( 4 ) IT is not disputed on behalf of defendant No. 3 that Suit No. 2013184, is pending for recovery of Rs. 3,97,161/12p which suit is rather being contested by all the defendants. Similarly it is not denied that defendant No. 3 holds a fixed deposit receipt No. DBD-23[307 dated 16th May, 1985 for Rs. ,71,147/31p due on 21st March, 1987 with the plaintiff-Bank. However, what is urged on behalf of defendant No. 3 is that ingredients of Order XXXVIII Rule 5 of the Code are not satisfied even according to the allegations of the plaintiff in the application and as such the application should be dismissed. A perusal of order XXXVIII Rule 5 of the Code shows that it reads as under :-

RULE 5 :-" (1) Where, at any stage of a suit, the Court is satisfied, by afiidavit or otherwise, that t