Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(Online)(P&H) 4996

HIGH COURT OF PUNJAB AND HARYANA
HARINDER KUMAR – Appellant
Versus
KASHMIRA SINGH – Respondent
/5817/2022

An application for attachment of property under Order 38 Rule 5 of the CPC should not be allowed when the title of the suit property is not clear and there is no material on record to indicate that the respondent is trying to alienate the suit land.

Headnote:
ATTACHMENT BEFORE JUDGEMENT - ORDER 38 RULE 5 CPC - SUIT FOR RECOVERY OF EARNEST MONEY - ALIENATION OF SUIT PROPERTY - NO MATERIAL ON RECORD TO INDICATE ALIENATION - APPLICATION FOR ATTACHMENT OF PROPERTY DECLINED.
Fact of the Case:

The petitioner filed a suit for recovery of earnest money paid to the respondent under an agreement to sell. The petitioner filed an application under Order 38 Rule 5 of the CPC for attachment of the respondent's property, alleging that the respondent was likely to alienate the suit land.
Finding of the Court:

The court found that the title of the suit property was not clear and that there was no material on record to indicate that the respondent was trying to alienate the suit land.
Issues: Whether the application for attachment of property under Order 38 Rule 5 of the CPC should be allowed when the title of the suit property is not clear and there is no material on record to indicate that the respondent is trying to alienate the suit land.
Ratio Decidendi: The court held that an application for attachment of property under Order 38 Rule 5 of the CPC should not be allowed when the title of the suit property is not clear and there is no material on record to indicate that the respondent is trying to alienate the suit land.
Final Decision: The court dismissed the petition challenging the order of the lower court declining the application for attachment of property.

Judgement Key Points

Based on the provided legal document, the recovery suit was maintained in the sense that the petitioner filed a suit for recovery of earnest money paid to the respondent under an agreement to sell (!) (!) (!) . However, the court declined the application for attachment of the respondent's property under Order 38 Rule 5 of the CPC, due to the lack of clear title to the suit property and the absence of material indicating an attempt by the respondent to alienate the land (!) (!) (!) (!) .

The court's decision to dismiss the application for attachment does not directly impact the maintainability of the recovery suit itself; rather, it pertains to the specific procedural aspect of securing the property before judgment. The suit for recovery of earnest money was initiated and is maintainable, but the application for attachment of property was rightly declined given the circumstances.

(109) CR No. 5817 of 2022 -1-

IN THE HIGH COURT OF PUNJAB AND HARYANA AT

CHANDIGARH

CR No. 5817 of 2022

Date of decision: 11.01.2023

Harinder Kumar

...... Petitioner.

Versus

Kashmira Singh

..... Respondent.

CORAM:

HON'BLE MR. JUSTICE ANUPINDER SINGH GREWAL

Present:-

Mr. Baljeet Beniwal, Advocate, for the petitioner.

****

ANUPINDER SINGH GREWAL, J. (ORAL)

The petitioner has challenged the order dated 08.09.2022 passed

by the Civil Judge (Junior Division), Fatehgarh Sahib, whereby the

application preferred by him under Order 38 Rule 5 of the Code of Civil

Procedure, 1908 ('CPC - for short), has been declined.

Learned counsel for the petitioner submits that the petitioner had

entered into an agreement to sell with the respondent and the respondent had

resiled from the same. He has filed a suit for recovery of the earnest money

which he had paid to the respondent. There is every likelihood of the

respondent alienating the suit land and, therefore, the application for

attachment of the property of the defendant ought to have been allowed.

Heard.

In response to a query of this Court as to whether the petitioner

had filed an application under Order 39 Rules 1 and 2 of the CPC, learned

counsel for the petitioner submits that the application had been declined and

an appeal there-against is pending adjudication before the Appellate Court.

RAMESH KUMAR MALIK

2023.01.11 17:32

I attest to the accuracy and

integrity of this document

(109) CR No. 5817 of 2022 -2-

It is manifest that the title of the suit property was not clear and

only after obtaining a clear title by the vendor, the sale deed could have been

executed. There does not seem to be any material on record at this stage

which would indicate that the respondent is trying to alienate the suit land.

Therefore, I do not find any infirmity in the impugned order dated 08.09.2022

declining the application of the petitioner.

Consequently, the petition stands dismissed.

(ANUPINDER SINGH GREWAL)

11.01.2023

JUDGE

Ramesh

Whether speaking/reasoned

Yes/No

Whether reportable