JUDGEMENT
R.DEVDAS,J. -
(1.)The petitioner is the defendant before the trial Court in O.S. No. 95/2021 on the file of the learned Prl. Sr. Civil Judge & JMFC,
Hosapete. The petitioner is aggrieved by the impugned order
dtd. 7/1/2022 passed on I.A. No. 2 filed at the hands of the
respondent-plaintiff under Order XXXVIII Rule 5 r/w Sec. 151 CPC,
seeking conditional attachment before judgment of the land
described in the schedule to the application and to call upon the
defendant to furnish security, in the interest of justice.
(2.)Learned counsel for the petitioner has drawn attention of this Court to the provisions contained in Rule 5 of Order XXXVIII and
submits that a plain reading of the provision makes it very clear that
when such an application is made and the Court is satisfied that
the defendant, with intent to obstruct or delay execution of any
decree, is about to dispose of the whole or any part of his property,
the Court may direct the defendant, within a time to be fixed by it,
either to furnish security, any 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.
(3.)The learned counsel would therefore submit that in the impugned order, the trial Court has not specified the sum to be
secured and has not fixed the time to furnish bank guarantee.
Moreover, the learned counsel would point out to Sub Rule (4)
which expressly provides that if an order of attachment is made
without complying with the provision of Sub Rule (1), such
attachment would be void. The learned counsel would also place
reliance on a judgment of this Court in the case of Palghat Rolling
Mills (P) Ltd. Vs. Visveswarayya Iron and Steel Ltd. (ILR 1995
KAR 3983) and submits that while analyzing the provision
contained in Order XXXVIII Rule 5 CPC, this Court has held that
mere mentioning of the apprehension in the affidavit is not
sufficient to hold that the defendant is intending to dispose of the
properties with a view to obstruct or cause delay in the execution of
the decree which may be passed against him. It was held that the
affidavit must state the source of the information or apprehension.
Unless the source is disclosed the Court should not hasten to pass
an order under Order XXXVIII Rule 5 CPC. It was therefore held
that since the affidavit did not meet the mandatory requirements of
Order XXXVIII Rule 5 CPC, therefore the Court could not have
passed an order of attachment before judgment.
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