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1974 Supreme(Del) 89
High Court Of Delhi
HARI SHANKAR - Appellant
Versus
BHOORI DEVI - Respondent
Civil 570 of 1973
Decided On : 04/12/1974
R.P.Jain, SULTAN SINGH
The mandatory requirement of Order 38 Rule 5(2) CPC, which requires the applicant to specify the property to be attached and its estimated value, must be strictly complied with before an order for attachment before judgment can be granted.
Headnote:
ATTACHMENT BEFORE JUDGMENT - ORDER 38 RULE 5 CPC - DESCRIPTION OF PROPERTY - MANDATORY REQUIREMENT - FAILURE TO COMPLY - ILLEGAL EXERCISE OF JURISDICTION - REVISION - SECTION 115 CPC - [ORDER 38 RULE 5(2) CPC] - [SECTION 115 CPC] - [HARI BAKHSH V BABU LAL] - SUMMARY
Fact of the Case:
Plaintiff filed a suit for recovery of money under Order 37 CPC and along with it filed an application for attachment before judgment under Order 38 Rule 5 CPC. Defendant was granted leave to defend the suit conditionally on furnishing security. Plaintiff filed an amended plaint basing the suit on the original cause of action rather than on the negotiable instrument. Defendant filed a written statement pleading that the bond was without consideration and that the accounts were settled and nothing remained due to be paid. Trial court allowed the application for attachment before judgment, holding that the plaintiff had proved the case for attachment and directed the defendant to furnish security or face attachment of jewellery at his shop.
Finding of the Court:
The court held that the trial court's order was illegal and set it aside. It found that the plaintiff's application for attachment before judgment did not comply with the mandatory requirement of Order 38 Rule 5(2) CPC, which requires the applicant to specify the property to be attached and its estimated value. The court also found that the trial court failed to properly investigate the allegations made in the application and did not satisfy itself of the practical certainty of the plaintiff's success and the existence of a grave danger that the defendant was making away with the probable fruits of the judgment.
Issues: 1. Whether the trial court erred in granting the application for attachment before judgment without complying with the mandatory requirement of Order 38 Rule 5(2) CPC? 2. Whether the trial court erred in failing to properly investigate the allegations made in the application and satisfy itself of the practical certainty of the plaintiff's success and the existence of a grave danger that the defendant was making away with the probable fruits of the judgment?
Ratio Decidendi: 1. The court held that the trial court erred in granting the application for attachment before judgment without complying with the mandatory requirement of Order 38 Rule 5(2) CPC. It found that the plaintiff's application did not specify the property to be attached and its estimated value, as required by the rule. The court also found that the trial court failed to properly investigate the allegations made in the application and did not satisfy itself of the practical certainty of the plaintiff's success and the existence of a grave danger that the defendant was making away with the probable fruits of the judgment. 2. The court held that the trial court erred in failing to properly investigate the allegations made in the application and satisfy itself of the practical certainty of the plaintiff's success and the existence of a grave danger that the defendant was making away with the probable fruits of the judgment.
Final Decision: The court allowed the revision petition and set aside the trial court's order for attachment before judgment.
( 1 ) THIS is a petition for revision against the order of the trial court dated 28th July, 1973, holding that the plaintiff has proved the case for attachment before judgment and has allowed an application dated 11th September, 1972, directing the defendant petitioner to furnish security in the sum of Rs 15,000/ by 20th August, 1973, and Failing in it, the petitioner s property mentioned in the application that is jewellery at his shop situated at Bhiwani worth Rs. 15,000. 00 was to be attached before judgment. The defendant petitioner being aggrieved has come to this. Court for setting aside the afore- said order. To appreciate the contentions of the parties, it is necessary to state a few facts.
( 2 ) ON 11th September. 1972, the present suit was filed for recovery of Rs. 10,8 00. 00 under the sumnury procedure of Order 37 of the Code of Civil Procedure, and along with it the aforesaid application for attachment bifore judgment was also filed under Order 38 Rule 5 of the Code of Civil Procedure. On the defendant-petitioner being served, he filed an application on 21st September for leave to defend the suit and contended that the document on which th3 suit had been filed is not a negotiable instrument and prayed for relief being granted unconditionally to defend the suit. The trial court by order dated 27th September, 1972 granted leave to the petitioner to defend the suit. The leave was, however, granted conditionally on his giving security for the sum of Rs. 11,000. 00 and if the security was not furnished the leave was deemed to have been declined. Sin-:e the defendant-petitioner was asked to furnish security on the application to seek leavs to defend the suit. the trial court directed that the plaintiff respondent s application under Order 38 Rule 5 need not be decided at this stage. The defendant- petitioner, however, challenged the aforesaid order dated 27th September, 1973 by way of resivision petition (CR. 453/72) and this Court on 5. 1. 1973 admitted the revision petition and further ordered that the proceedings for furnishing security are stayed but the proceedings in the application under Order 38 Rule 5 may be continued, whereupon the defendant-petitioner filed his written statement on or about 19th February, 1973. However, soon thereafter in February 1973. the plaintiff-respondent filed an amended plaint basing his suit on the original cause of action rather than on the negotiable instrument. In the amended plaint, the plaintiff resp. pleaded that the resp. on 11. 12. 1970 took loan of Rs. 15,000. 00 and executed the document dated 11. 12. 1970 and the loan was to carry interest of 7% per annum and the loan was to be discharged in instalments of Rs. 1000. 00 each every month with effect from 11th January, 1971 It was further pleaded that the respondent had so far paid only five instalments of Rs 1000/ fromjanuaryl9/l tomay l971 but has failed to pay any subsequent instalment and therefore the whole of the balance amount has become due in terms of the document dated 11th December, 1970. The balance amount was of Rs 10. 000. 00 towards principal and Rs. 800. 00 as interest. The defendant petitioner filed a written statement pleading that the bond was without consideration. It was further pleaded that sometime earlier upto 31st March, 1970, the petitioner had been carrying on business along with the plaintif s deceased husband, Shri Ghisilal under the firm name M/s Ghisi Lal Jewellers, at Jaipur but the said firm was dissolved on 31st March, 1970 but for commercial expediency the petitioner was shown as sale/commission agent. It was further pleaded that the said Ghisilal unfortunately expired about the time of Diwali in 1970 and after the dissolution of the firm, the petitioner started his own business in the month of April 1970 in partnership with one Rajesh Kumar Goyal in the name of M/s Kamal Jewellers, Shahid Market, at Bhiwani, which firm continued till July 1971 and thereafter the petitioner ha
