In order to obtain security from the defendant under Order 38 Rule 1 of the Civil Procedure Code, the plaintiff must demonstrate a bona fide suit with a prima facie unimpeachable cause of action. The existence of serious disputes between the parties and the absence of evidence suggesting the defendant's imminent departure from the country negate the need for security.

( 1 ) THIS application under 0. 38, R. 1, Civil P. C. has been filed by the plaintiff for calling upon the defendant to furnish security both for his appearance and for the satisfaction of the decree that may be ultimately passed in the plaintiff s. favour. Order 38, R. 1, Civil P. C. reads as under:

"0. 38, R. 1: Where defendant may be calledupon to furnish security for appearance. Where at any stage of a suit, other than a suit of the nature referred to in S. 16, els. (a) to (d), the Court is satisfied by affidavit or otherwise (a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him, (i) has absconded or left the local limits of the jurisdiction of the Court,or (ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or (iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or (b) that the defendant is about to leave (India) under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance: : Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff s claim, and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court. "

( 2 ) THE general rule is that a plaintiff must first obtain a decree and then execute the same. The question of arrest of the debtor or attachment of the property would arise at the stage of execution of the decree. However, under special circumstances which are specified in Rr. 1 and 5 of 0. 38, Civil P. C. , the creditor can take out arrest or attachment against his debtor even before the judgment.

( 3 ) IT is alleged in the application that the defendant is a foreign national and is on a temporary posting in India. It is further alleged that as is apparent frond the allegations in the plaint the conduct of the defendant is not free from doubt and as such it is necessary to pass orders under 0. 38, R. 1, Civil P. C. It is well settled that before exercising the powers under O. 38, R. 1 the Court has to be satisfied that the plaintiff s suit is bona fide and that his cause of action is prima facie an unimpeachable one. In order to decide) this, it is necessary to refer to the plaint and some of the documents along with the plaint.

( 4 ) THE suit is for the recovery of Rs. 1. 08,486. 00 on account of contractual job relating to the renovation and repair of 20, Friends Colony, New Delhi and on account of hire charges relating to six air-conditioners and one double door refrigerator. It is alleged in the plaint that the premises now occupied by the defendant namely 20 Friends Colony, New Delhi needed extensive repairs, being an old structure where even the plaster outside and within was peeling off and the building having been built some time in mid 50 s, in order to make it fit for residential purposes. The plaintiff offered his services to undertake the said job and submitted an estimate on or about 8-2-1977 to the defendant. The estimate was forwarded with a letter dated 8-2-1977 and last paragraph of the letter is, as follows:

"renovation work will be carried out to your entire satisfaction and may I point out that the job will have a guarantee period of 2 years within which any defects detected will be set right free of cost. Not only yourself, but any visitor would find the work in conformity to your excellent aste. "

( 5 ) THE payment clause in the agreement between the parties is. as follows

"on approval