1981 Supreme(MP) 454

B. C. Varma, J,
Narsinghbhai Patel v. Ashok Kumar.
Misc. A. No. 76 of 1980 (G); Decided on 20-8-1981.

Headnote:(1) Civil P. C., 1908 -- O.38, R. 5 -- attachment before judgment -- vague allegations not sufficient -- mere suspicion will also not do -- relief under call only be granted Upon establishment of legal requirement of the provision.

        (2) Civil P. C., 1908 -- O.38, R. 5 -- remedy under -- nature of-- it is an extra ordinary remedy.

        (3) Affidavit -- deponent must clearly state fact in his personal knowledge -- it based on information, source of information should be revealed.

        In this appeal by the defendant is challenged the order by which the appellants house has been attached before the judgment.

        Held: The remedy of attachment before judgment is extra-ordinary. It seeks to grant relief to the plaintiff and casts an obligation upon the defendant without there being a trial. Maximum care should, therefore, be taken before any such order is passed lest it becomes a weapon of operation in the hands of unscrupulous plaintiff. Unless all the requirements of Order 38, rule 5 CPC are strictly established no plaintiff should be granted the relief under this provision. The allegations must be clear and cogent and the affidavit in support of the application must also be in accordance with the prescribed rules. The affidavit must clearly state the facts which are true to the personal knowledge of the deponent and if it is made on the information received, then the source of information must also be clearly stated. All attempt must be made to avoid abuse of the process of the Court. Strict proof of the allegation made in the application must be implied upon. Mere apprehension in the plaintiffs mind that his dues might remain unpaid and the justifiability of his burden nervous about their recovery should not weigh while considering an application for attachment before judgment, it would be granted only upon establishment of the legal requirements. It is true that direct evidence of intention which is as introduced fact, cannot be exhibited and that the question has to be determined having regard to all the circumstances of the case and the conduct of the defendant. All the same the facts that the defendant is possessed only one house will not be a factor which may weigh in favour of the plaintiff in this regard.

        Considered in the light of the above position of law, I am of the opinion that the respondent-plaintiff has made out no case for grant of attachment before judgment. To begin with all that is said in the affidavit is that on the information received, it has been known that the appellant is about to dispose of his house and that he once attempted to dispose it of. Source of this information is not disclosed, The allegations were too vague. It is not disclosed when such attempts were made, who was or were the prospective purchaser purchases and when and to whom the appellant attempted to transfer the property and that the plaintiffd`respondent firm Objected to it. The allegations are rather vague and from the application it appears that it is mere reproduction of the terms of Order 38, rule 5 of the CPC. There is nothing on record from which it can be inferred that the appellant has attempted to transfer his house or that such intended transfer is with a view to defeat and delay the respondents claim. On the other band, in my opinion, the circumstances of the Case, the allegations made in the application and the affidavit and the reply filed by the appellant only show that the appellant never intended to effect such a transfer of his house. 1 he mere fact that he is an ex-employee of the respondent, that be filed the written statement let and that he has only one house and no other property will not constitute factors upon which an order directing attachment before judgment can be passed in plaintiffs favour. Mere suspicion will not do. It appears from paragraph 6 of the impugned order that the lower Court has based its decision only on the circumstances that the appellant has no other property within the jurisdiction of the Court and that the apprehension of the plaintiff that the house may be transferred is not groundless. In my opinion, the considerations which have weighed the lower Court are not at all sufficient to warrant an order directing attachment before judgment. The learned District Judge has completely gone wrong in basing his decision on such considerations That order, therefore, cannot be allowed to stand and must be set aside. Appeal allowed.