The main legal point established in the judgment is the necessity for specific actions of the defendant leading to obstruction or delay in execution of the decree, and the imperative compliance with the provisions of sub-rule (1) of Rule 5 for attachment before judgment.

The plaintiff in a suit for realisation of money is the revision petitioner. The revision is directed against the order dismissing a petition for attachment of property before judgment filed under Order XXXVIII Rule 5 of the Code of Civil Procedure.

2. The petitioner filed the suit to recover an amount of Rs. 82,000/- being the value of the gold ornaments which the respondent had taken from him. It was apprehended that the properties of the respondent would be alienated before the judgment and therefore the petitioner filed an application under Order

XXXVIII Rule 5 for attachment of the property of the respondent. Initially the trial court passed an order of attachment on condition that the attached property can he released on furnishing security. The respondent has raised objections to the said order. The court. below after hearing both sides came to the conclusion that the allegations contained in the affidavit are not sufficient enough to order attachment. The application was therefore rejected.

3. Under sub-rule (1) of Rule 5 of Order XXXVIII, the court has power to direct the defendant in a suit to furnish security as may be sufficient to satisfy the decree to be passed against him. This power can be exercised by the court only when it is satisfied by affidavit or otherwise that the defendant is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. Such disposal or removal must be with an intention to obstruct or delay the execution of any decree that may be passed against him in the suit. In the absence of such intention the court cannot direct the defendant to furnish security.

4. What is available before this court in this case is an affidavit filed by the petitioner alleging that the respondent has executed documents in respect of the petition-scheduled property in the name of his children. It is further alleged that he is trying to alienate those properties in which case the petitioner could not realise the decree amount, if he succeeds in doing so. The case of the respondent, on the other hand, is that he has no title to the properties in question and that he has no intention to sell or otherwise dispose of the properties.

5. It is brought to my notice by learned counsel for the respondent the decision of this court in Rai Premdiand & others v. P.K. Ahamed & Co. (1982 KLT 294) wherein it is said: "Vague and general allegations that the defendant is about to dispose of the property or remove it. beyond the jurisdiction of the court unsupported by particulars, would not be sufficient compliance with the rule". Reliance was placed on a decision of the Madras High Court in V.K. Nataraja Gounder v. S.A. Rangaru Reddiar (AIR 1965 Madras 212). The above decision of this court was considered by the Division Bench in Pareed Master v. Antony (1987 (2) KLT 649) and distinguished it on facts. There is nothing to indicate that the Division Bench has disapproved the ratio of the said decision. Of course, the Division Bench has pointed out certain pragmatic problems as thus:

"The court while construing these provisions should keep in mind the pragmatic difficulties of a plaintiff. The defendant if he had intention to defeat or delay the execution of the decree that' may be passed against him would be disposing of the property in a clandestine manner. The plaintiff would not be in a position to know all the details of that transaction".

However, for that reason the Division Bench did not say that the requirement provided in sub-rule (1) of Rule 5 can be dispensed with by the courts. The Division bench, in fact, observed:

"It is true that mere allegation of the plaintiff is not sufficient to order an attachment before judgment".

6. The decision of Sinha, J. (as he then was) in Premraj Mimdra v. Md. Maneck Gazi & others (AIR 1951 Calcutta 156) was relied on by the Division Bench as well as the single bench of ti