In order to obtain an order for attachment before judgment under Order 38, Rules 5 and 6, Civil P. C., the plaintiff must prove that the defendant is about to dispose of his properties with the intention of obstructing or delaying the execution of any decree that may be passed against him.

( 1 ) THIS is an application under the provisions of Order 38, Rules 5 and 6, Civil P. C. , for an order that the defts do furnish security for the pltf. 's claim, and in default, the properties set out in the schedule annexed to the petition, belonging to the defts. , be attached before judgment. There is a further prayer for a Receiver, but this is not pressed.

( 2 ) THE suit is for goods sold and delivered by the pltf. to the defts. The sale is evidenced by a document described as a 'chalan' in the petition, the actual document being headed as a 'credit Memo. ' A copy of this document has been annexed to the petition. This 'credit Memo" states the name of the purchaser as Muhammad Maneck Gazi. It then gives the description of the goods, together with its rate and prices. It contains an endorsement at the bottom as follows: "we certify the above prices is/are correct and no overcharge has been made. " It is signed by the purchaser namely Maneck Gazi. The document also contains the salesman's signature. The petitioner states that the defts. made payments from time to time and returned a portion of the goods and there is now due a sum of Rs. 7,927-10-0 from the defts. which they have failed to pay. It is stated that the defts. are Muhammadan businessmen and they used to carry on a small business at their residence at village Raghbkati, Basirhat, in the district of 24 Parganas. The village is just on the border of Hindusthan and Pakisthan. It is stated that they have stopped their business at Raghabkati and have started a small business in Pakisthan. It is further alleged that the defts. approached one Shyamapada Upadhyay, a Zemindar and land-holder, residing at village Sarapool, in Basirhat, very near the village of Raghabkati, a few weeks ago, and requested him to purchase the immovable properties belonging to the defts. , particulars whereof are set out in the petition, for a sum of Rs. 8000. , I have before me an affidavit of Shyamapada, Upadhyay, and he not only confirms that the defts. wished to sell the properties, but he also says that they told him that they wished to sell away their properties, and go to Pakisthan, to settle down there. The petitioner alleges that the defts. are trying to dispose of their properties with the intention of obstructing and delaying the execution of any decree that may be passed against them.

( 3 ) DEFENDANT 1 has filed an affidavit in which he has taken a very curious defence to the suit. He says that he lent his godown to the petitioner for storing his goods, and in view of that fact, the petitioner used to get credit vouchers signed by him. He says that he signed the vouchers as witnessing the quantity of articles stored. He concludes by saying that nothing is due from him; on the contrary he is to get commission for storing the articles.

( 4 ) IN view of the 'credit Memo' signed by him as mentioned hereinbefore, this story sounds incredible. It is true that at this stage I cannot come to a final decision as to the merits of the defence, but I am entitled to consider the evidence, as has been presented before me, to discover, whether the defence is a bona fide one, or whether the defts. have any reasonable chance of success at the trial. Further, as I will presently explain, I have to come to a decision as to the intention of the defts. , and as to whether I should believe the case made by them, or that of the petitioner and his witnesses. The learned Advocate appearing on behalf of the defts. stresses the point that I cannot at this stage go into the question of ' the merits of the suit at all. He further states that no case is made out to show that the defts. were transferring their properties with an intention to delay or defeat the pltf. 's claim. It is, therefore, necessary for me to recapitulate the law on the subject.

( 5 ) THE relevant portion of Order 38, Rules 5 and 6, Civil P. C. runs as follows :5. (1) "where at any stage of a suit, the Court is satisfied by