ORDER

1. This petition under Article 227 of the Constitution of India has been filed seeking the following reliefs :-

i) It is, therefore, prayed that the order dated 8.12.2023 passed by the Court below be set aside and the applications filed under Order 6 Rule 17 CPC as well as the application filed under Order I Rule 10 CPC filed by the petitioners be allowed.

ii) Any other relief or reliefs deemed fit and proper in the facts and circumstances of the case may kindly be passed in favour of the petitioner in the interest of justice.

2. It is submitted by counsel for the petitioners that petitioners have filed a suit for recovery of Rs.35,00,000/-. Accordingly, they filed an application under Order 38 Rule 5 CPC for attachment of immovable properties of the defendant before the judgment. Somehow the aforesaid application remained pending and during the pendency of suit, the respondent has alienated the property. It is submitted that now nothing is left with the respondent. In case if the suit is decreed and a money decree of Rs.35,00,000/- is granted to the petitioners, still then the petitioners would be helpless in getting the decree executed because the petitioners are not interested in sending the respondent to civil jail but they are interested in recovery of the amount.

3. It is submitted that since the respondent has alienated the property in dispute to a third person, therefore, the petitioners filed an application under Order 6 Rule 17 CPC along with an application under Order 1 Rule 10 CPC. However, by the impugned order, both the applications have been rejected. It is submitted that since the purchaser has purchased the property during the pendency of the suit, therefore, purchaser is a necessary party so that the property in question can be sold in execution of money-decree.

4. Heard the learned counsel for the petitioners.

5. Order 38 Rule 5 CPC reads as under:- 5. Where defendant may be called upon to furnish security for production of property.—(1) (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) If an order of attachment is made without complying

with the provisions of sub-rule (1) of this rule, such

attachment shall be void.]

(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) If an order of a