1989 Supreme(MP) 765

IN THE HIGH COURT OF MADHYA PRADESH
K.L. SHRIVASTAVA, J.
Akhatar Bee – Appellant
Vs.
Salimuddin – Respondent
Misc. A. No. 212 of 1986 (I)
Decided on : 16-08-1989

Headnote:Civil Procedure Code, 1908 – O. 38, R. 5 and 6 (1) – attachment before judgment – legal requirements of the provision must be established – Court must also be satisfied about disposal Or removal of the property.

        Short Note

       1. Circumstances giving rise to this appeal are these. The appellant on 22 – 4 – 85 entered into a written agreement to sell her house situate at Indore to the two respondents who are brothers, for a consideration of Rs.1,08,000/ – and received Rs.28,000/ – as earnest money (Bayana).

       2. After exchange of notices between the parties the respondents ultimately on 2 – 1 – 86 instituted a civil suit numbered as C.S. No. 1 – A/86 for recovery of Rs. 32,360/ – including the aforesaid sum of Rs. 28,000 – / .

       3. Earlier the respondents filed an application under order 39, rules 1 & 2 of the Code alleging that the appellant had agreed to sell the house in question to one Jehangir and they be restricted from doing so.

       4. The application was opposed and later on 30 – 4 – 86 the respondents filed an application dated 30 – 4 – 86 referred to above.

       5. The contention of the learned counsel for the appellant is that the respondents have not made out a ground for an order in their favour requiring the appellant to furnish security or for attachment of her property before judgment. In support of his submission he has placed reliance on the decisions in M/s. Gajrat & Co.'s case (1957 MPC 120) and Narsingbhai Patel's case (1982 M.P.W.N. 237).

       6. The contention of the learned counsel for the respondents is that in the circumstances the order for furnishing security and for attachment if no security is furnished, is just and no interference is called for. He placed reliance on the decision in Ramnath's case (1985 M.P.W.N. 448).

       7. Held: On a careful consideration of the submissions I am of the view that the appeal must be allowed. Order 38, Rule 5 of the Code provides for an order directing the defendant either to furnish security for production of the property or to appear and show cause why he should not furnish security. Order 38, Rule 6 (1) lays down that where the defendant fails to do as stated above, the Court may order that the property or a portion thereof be attached.

       8. In the aforesaid decision in M/s. Gajrat & Co,'s case (supra) it has been observed as under:

       "The jurisdiction under Order 39, R.5 C.P.C. is extraordinary and has to be exercised with the utmost caution. An order of attachment before judgment cannot be made on the mere asking of the plaintiff. Before making the order, the Court must be satisfied not only that the defendant is really about to dispose of his property or about to remove it from its jurisdiction but also that the disposal or removal is with intent to obstruct or delay the execution of any decree that may be passed:

       9. It has been pointed out that relief under Order 39, Rule 5 of the Code can only be granted upon establishment of the legal requirements of the provision.

       10. In the instant case, no affidavit has been filed in support of the application under Order 38, Rule 5 of the Code. Further, a perusal of the impugned order shows that the learned lower Court has passed the impugned order without recording a finding that it is satisfied that the appellant is really about to dispose of the property or about to remove it from its jurisdiction and further that the disposal or removal is with intent to obstruct or delay the execution of the decree, that may be passed. 1957 MPC 120 and 1982 MPWN 237 relied on. 1985 MPWN 448 referred to.

       Appeal allowed.