An order of attachment before judgment under Order 38 Rule 5 CPC can only be granted if the plaintiff satisfies the court that the defendant is about to dispose of or remove his property with the intention of obstructing or delaying the execution of any decree that may be passed against him.

1. The defendant in O.S. No. 4605 of 1997 on the file of the 6th Assistant Judge, City Civil Court, Madras has filed this revision against the order dated 110. 1997 in I.A.No.11865 of 1997 wherein an order of attachment was made. The main grievance of the petitioner is that the respondent has not made out any case for an order under Or.38, R.5 of Civil Procedure Code. There is absolutely no averment as required under Or.38 R.5 CPC. The argument of the learned counsel for the petitioner is that the lower court has passed an order of attachment without assigning any reason.

2. The learned counsel for the respondent contended that in view of the attitude taken by the petitioner and inview of certain admissions the court below has passed an order of attachment and the interest of the respondent has to be taken care of in case he succeeds in the suit. In order to consider the rival contentions of the counsel first of all I shall refer to the averments made in the affidavit filed in support of the application in I.A.No.l 1865 of 1997. It is stated that the defendants are now heavily involved in debts and not in a position to meet their commitments and that is why they are now to trying defraud the plaintiff. The plaintiff further understand and believe the same to be true that with the intention to defeat and delay the execution of the decree that may be passed in the suit, the defendants are trying to secrete all the assets namely all the stocks in the business place and if they do so the plaintiff will be put to irreparable loss and damage and the plaintiff will not be able to recover any money as the defendants does not possess any immovable property. Only on the basis of the above averment the attachment before judgment is sought for.

3. Order 38 rule 5 CPC is as follows:-

" Where defendant may be called upon to furnish security for production of property:- (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, — (a) is about to dispose of the whole or any part of his property; or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security;

(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof;

.(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.

4. In the affidavit filed in support of the application the plaintiffs have not stated that the defendants are about to dispose of the whole or any part of their property or they are about to remove the whole or any part of the property from the local limit of the jurisdiction of the lower court. What all stated is that the defendants are trying to secrete the assets. In the judgment reported in T. Srinivasan and Anr v. V.S. Srinivasan, AIR 1985 Mad. 269 this Court has laid down that the application under Or.38, R.5 for attachment before the judgment cannot be allowed as a matter of course, and that the relief could be granted only if conditions set out in Rule 5 are satisfied. It is further stated that the said provision is not to be used as a lever for the plaintiff to coerce the defendant to come to terms. In paragraph 4 it has been held as follows:-

A mechanical adaptation of the language of the relevant provision of the Civil P.C. hereinafter referred to as the Code, namely, 0.28, R.5 thereof would noi suffice the purpose. There must