1. In Suit for recovery of Rs. 6,93,760, the plaintiff--respondent No. 1 herein on 20th May 2009 filed an application under Order 38 for attachment of the defendants property viz truck bearing registration No. HR-38F-5192 before the judgement. The respondent 1’s case was that the property sought to be attached before the judgement was likely to be removed by the petitioner herein and other defendants--all residents of Ludhiana Punjab, outside the jurisdiction of the Court and thus the respondent No. 1 deprived of the fruits of litigation. The respondent No. 1 insisted that he had a fool proof and winnable claim against the petitioner and other defendants and suit instituted by the respondent No. 1, was likely to be decreed in his favour.

2. The Trial Judge on 20th May 2009 after summarising the averments made in the plaint as well as the application, issued notice to the petitioner and other defendants requiring them to file their objection, if any, to the prayer made in the application and to show cause why petitioner and other defendants be not asked to furnish security to the tune of the suit amount or in alternative show cause against the attachment before the judgment of truck No. HR-38F-5192

3. The petitioner and defendants 2 in their reply admitted to be owner and attorney holder of the vehicle in question and insisted that the defendant No. 1 in the suit employed as a driver by the petitioner and defendant No. 2 in the suit, had nothing to do with the vehicle in question. The petitioner and other defendant sought to wriggle-out of any liability to pay compensation on account of 1072 fruit boxes belonging to respondent No. 1 allegedly misappropriated by defendant No.1 -- truck driver, on the ground that the defendant No. 1 had while accepting the consignment acted on his own without any instructions from the petitioner and defendant No.2. Learned Trial Judge on going through the pleadings and after hearing Learned Counsel for the parties directed release of the truck bearing No. HR-38F-5192 in favour of registered owner (petitioner) subject to condition that the petitioner and defendant No. 2 furnish a bank guarantee to the tune of Rs. 6,93,760, from a nationalized bank valid till disposal of the suit, so that the decree, if any, passed in the suit is executed.

4. The petitioner questions the order dated 2nd September 2009 in the present appeal on the grounds that the suit as well as the application under Order 38 CPC has been filed by the respondent No. 1 to block release of truck in question seized by Police Station Shopian in case FIR No. 210 of 2008 and that the order impugned in the petition is contrary to the law and liable to be set aside. It is pleaded that the dispute between the parties is purely "criminal in nature" and that the civil suit is not maintainable; that the plaint as well the application, do not disclose prima-facie case in favour of the respondent No.1. It is averred that the power to order attachment under Order 38 CPC is preventive and not punitive in nature and the Court is expected to examine all the relevant circumstances and not to pass order of attachment in a mechanical manner, without application of mind. It is further pleaded that the Trial Judge while making the order in question has not recorded any satisfaction as regards fundamental ingredients of Order 38 Civil Procedure Code. The order impugned in the appeal is assailed as harsh and in effect compelling the petitioner and defendant No.2 to deposit the suit amount at the very threshold of civil suit.

5. Heard and considered.

6. Order 38 Rule 5 CPC makes Provision for attachment before judgement so as to enable the plaintiff to get fruits of the decree that may eventually be passed and prevent the decree from being rendered infructuous. The power with which a Civil Court is vested under Order 38 Rule 5 CPC is an extra ordinary power and is to be exercised with due care and caution. It needs no emphasis that an order before attachment on

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