Hon'ble KOTHARI, J.—This writ petition is directed against the order dtd. 24.3.2009 passed by the learned court below while deciding the application under Order 38 Rule 5 C.P.C. and order 38 Rule 1 C.P.C. read with Section 151 C.P.C. filed by plaintiff.

2. The learned court below has directed by the impugned order that since the defendant has already put in appearance in the court, the Court is not issuing any arrest warrant while disposing of the application under Order 38 Rule 1 CPC., but at the same time, the defendant within one month should deposit security for a sum of Rs. 9,33,350/- against the probable decree which may be passed by the Court in the Civil suit instituted for recovery of the said sum by the plaintiff-respondent. In the case of default of deposit of said security, the defendant shall undergo civil imprisonment and thus, the Court decided both the applications under Order 38 Rule 1 and Order 38 Rule 5 CPC.

3. The defendant-petitioner filed this writ petition challenging the said order. Mr. Suresh Shrimali, learned counsel appearing for the defendant-petitioner urged that the suit was instituted on 17.10.2008 and the application under Order 38 Rule 5 CPC was filed by the plaintiff on 20.10.2008. However, still by 15.11.2008, service on defendant could not take place and summons were returned unserved on 15.11.2008 in which next date was fixed on 2.1.2009. The learned counsel for the defendants submitted that the defendant's counsel put in appearance before the Court below on 2.1.2009. He further submitted that the property which was sought to be attached had already been sold by the defendant on 27.10.2008 and therefore, the same is not hit by Order 38 Rule 5 CPC and could not be attached by the Court below. He further submitted that the purpose of Order 38 Rule 1 CPC., is to only secure the appearance of the defendant in a civil suit and therefore, the learned trial Court could not direct the deposit of security for entire decreetal sum of Rs. 9,33,350/- by the impugned order while disposing of the application under Order 38 Rule 1 CPC. He submitted that since no attachment had been ordered of the said property prior to 27.10.2008 and arrest warrant for securing such the claim of the plaintiff under Order 38 Rule 5 CPC was not issued, there was no question of learned trial Court directing the defendant-petitioner to furnish the security for entire sum of Rs. 9,33,350/- and since no attachment had been ordered, the defendant could not be directed to be arrested for want of deposit of such security for entire decreetal sum. He, therefore, prayed for quashing of the impugned order of the learned trial Court. He relied upon the decision of Madras High Court in the case of V. Balakrishnan vs. T.M. Gowreishan and Anr. reported in AIR 2001 Madras 20, in which despite undertaking given by the respondent-defendant not to alienate the suit property, but since the suit property was already mortgaged and it was also known to the plaintiff-applicant and mortagee brought the property for sale and the respondents-defendants have not received any money from mortgagee or from purchasers, the respondents cannot be said to have flouted undertaking given by them and no warrant of arrest could be issued against the respondents-defendants.

4. On the other hand, Mr. J.K. Bhaiya, learned counsel appearing for the respondent-plaintiff urged that both the applications were pending and both have been disposed of by common order and the purpose of order 38 Rule 1 and Order 38 Rule 5 CPC is to secure the presence of the defendant in the Court and also to secure the claim of the plaintiff by attachment before the judgment, in case of apprehension of the defendant leaving the jurisdiction of the Court or absconding or there is apprehension that he may dispose of the property in question leaving the claim or the decree which may be passed by the Court unsatisfied. He, therefore, urged that in the presence case, the process server's report

Click Here to Read the rest of this document