1991 Supreme(MP) 543

IN THE HIGH COURT OF MADHYA PRADESH
A.G. QURESHI, J.
Link Automobiles (M/s.) - Appellant
Versus
State Bank of Indore - Respondent
C.R. No. 375 of 1991 (I)
Decided on : 03-12-1991

Headnote:Civil Procedure Code, 1908 – O. 38, R. 5 – application for attachment before judgment – strong case to be made out by plaintiff – defendant is deprived to use the property – Court may order furnishing security instead of attachment – no such prayer is necessary.

        Short Note

       1. This revision petition is directed against the order dated 1.10.1991 passed by the Fifth Addl. Judge to the Court of District Judge, Indore in C.O.S. No. 3 – B of 91, whereby the prayer of the non – applicant Bank made under Order 38, R. 5 CPC and O. 39, Rules 1 and 2 CPC has been disallowed, instead a direction has been given to the present petitioner of furnish security of Rs. 4,00,000/ – (four lacs) for the due performance of the decree which may be finally passed against the present petitioner. Aggrieved by the condition directing the petitioner to furnish security, this revision petition has been filed.

       Held: On perusing the order of the lower Court I find that the lower Court has not acceded to the request of the plaintiff made under O.38, R. 5 CPC in view of the fact that a possibility of transfer has been expressed by the plaintiff, but no specific averment has been made about the actual factum of transfer or any agreement to transfer the aforesaid property. Therefore, the Court came to the conclusion that in view of the concrete facts being not available, it would not go to the extent of taking an extreme action of attaching the property of the defendant. However, the grievance of the plaintiff created under the apprehension of the transfer of the property can be redressed if a direction asking the defendants to furnish security is made.

       2. It is true that when plaintiff, seeking the relief under O. 38, R. 5 CPC goes before the Court, he has to make out a strong prima facie case against the defendants in view of the fact that an action of attachment before judgment is such an action which may deprive the defendant of the use of the property which he is enjoying and in the event of the final adjudication in favour of such defendant, although he is entitled to restitution, but the restitution at a later stage in certain circumstances may be not of such a nature which may restore back the prestige or the inconvenience caused to the defendant as a result of attachment before judgment. Therefore, in those cases where the Court may not be inclined to pass art order of attachment before judgment in the absence of a strict proof in respect of the possibility of the transfer of the property by the defendant, the Court can always resort to the method of asking the defendant to furnish a security. However this observation should not be construed to mean that in every case where an application under O. 38, R. 5 CPC is filed, the Court will pass such an order. But in appropriate cases where the Court feels it necessary to safeguard the interest of the plaintiff, such an order can be passed. A Single Bench of this Court in Ramnath v. Jalom Singh (1985 MPWN 448) has also taken a view that such a course of action asking the defendant to furnish security in lieu of attachment before judgment is permissible.

       3. It has further been argued that in the application made by the Bank under O.38, R. 5 CPC the Bank had not made a prayer for a direction against the defendant for security. Therefore, also such a relief could not be granted.

       4. In my opinion this argument is also without any force for the simple reason that the Bank had asked for a drastic measure against the defendant. The Court took a lenient view in the matter and instead of attaching the property in question only gave a direction of furnishing security. Therefore, when an order is passed by a Court in lieu of a relief claimed, then it is not incumbent on the Court to refuse to grant a relief in lieu of the original relief without there being a prayer for alternate remedy specifically. 1985 MPWN 448 relied on. Revision dismissed.