N. N. GOSWAMY ( 1 ) THIS application under 0. 38, R. 1, Civil P. C. has been filed by the plaintiff for calling upon the defendant to furnish security both for his appearance and for the satisfaction of the decree that may be ultimately passed in the plaintiff s. favour. Order 38, R. 1, Civil P. C. reads as under: "0. 38, R. 1: Where defendant may be calledupon to furnish security for appearance. Where at any stage of a suit, other than a suit of the nature referred to in S. 16, els. (a) to (d), the Court is satisfied by affidavit or otherwise (a) that the defendant, with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him, (i) has absconded or left the local limits of the jurisdiction of the Court,or (ii) is about to abscond or leave the local limits of the jurisdiction of the Court, or (iii) has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof, or (b) that the defendant is about to leave (India) under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance: : Provided that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff s claim, and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court. " ( 2 ) THE general rule is that a plaintiff must first obtain a decree and then execute the same. The question of arrest of the debtor or attachment of the property would arise at the stage of execution of the decree. However, under special circumstances which are specified in Rr. 1 and 5 of 0. " ( 2 ) THE general rule is that a plaintiff must first obtain a decree and then execute the same. The question of arrest of the debtor or attachment of the property would arise at the stage of execution of the decree. However, under special circumstances which are specified in Rr. 1 and 5 of 0. 38, Civil P. C. , the creditor can take out arrest or attachment against his debtor even before the judgment. ( 3 ) IT is alleged in the application that the defendant is a foreign national and is on a temporary posting in India. It is further alleged that as is apparent frond the allegations in the plaint the conduct of the defendant is not free from doubt and as such it is necessary to pass orders under 0. 38, R. 1, Civil P. C. It is well settled that before exercising the powers under O. 38, R. 1 the Court has to be satisfied that the plaintiff s suit is bona fide and that his cause of action is prima facie an unimpeachable one. In order to decide) this, it is necessary to refer to the plaint and some of the documents along with the plaint. ( 4 ) THE suit is for the recovery of Rs. 1. 08,486. 00 on account of contractual job relating to the renovation and repair of 20, Friends Colony, New Delhi and on account of hire charges relating to six air-conditioners and one double door refrigerator. It is alleged in the plaint that the premises now occupied by the defendant namely 20 Friends Colony, New Delhi needed extensive repairs, being an old structure where even the plaster outside and within was peeling off and the building having been built some time in mid 50 s, in order to make it fit for residential purposes. The plaintiff offered his services to undertake the said job and submitted an estimate on or about 8-2-1977 to the defendant. The estimate was forwarded with a letter dated 8-2-1977 and last paragraph of the letter is, as follows: "renovation work will be carried out to your entire satisfaction and may I point out that the job will have a guarantee period of 2 years within which any defects detected will be set right free of cost. The estimate was forwarded with a letter dated 8-2-1977 and last paragraph of the letter is, as follows: "renovation work will be carried out to your entire satisfaction and may I point out that the job will have a guarantee period of 2 years within which any defects detected will be set right free of cost. Not only yourself, but any visitor would find the work in conformity to your excellent aste. " ( 5 ) THE payment clause in the agreement between the parties is. as follows "on approval of the estimate and while entrusting the work, a sum equivalent to 50% of the total amount of the estimate is payable in advance. 25% of the total amount of the estimate will be payable and may be given to me when 50% of the entire work is completed to your satisfaction. The balance of 25% of the total amount will be payable when the entire job is completed to the entire satisfaction. " ( 6 ) THE work was to be completed within one month from the date the same was entrusted to the plaintiff. The total value of the contract was Rupees 95,611. 00. The. plaintiff has further averred that after the aforesaid contract the defendant had entrusted certain additional work and a bill for the said additional work amounting to Rupees 73,275. 00 was sent to the defendant. The defendant was also liable to pay hire charges of six air-conditioners and a double door refrigerator supplied by the plaintiff to ,the defendant. It is not disputed that out of the contractual job a sum of Rs. 73,000. 00 has already been paid to the plaintiff and a balance of Rs. 22,611. 00 remains which is just 25% of the entire amount so provided in the contract between the parties. ( 7 ) I have heard the learned counsel tor the parties and have also gone through the agreement and other documents placed on record. According to me it cannot be said that the plaintiff has made out an unimpeachable case lor the following reasons: (I) Though according to the plaintiff the entire work was completed in May 1977, no bill for the additional work was submitted by the plaintiff to the defendant till Aug. According to me it cannot be said that the plaintiff has made out an unimpeachable case lor the following reasons: (I) Though according to the plaintiff the entire work was completed in May 1977, no bill for the additional work was submitted by the plaintiff to the defendant till Aug. 1977 when the legal notice by the defendant was served on the plaintiff; (ii) There is a written contract between the parties for the initial work and for the alleged additional work not only that there is no written contract, there is no other document even to support the contention of the plaintiff that any additional work was entrusted to him; (iii) The hire charges tor the airconditioners as also for the double door refrigerator were claimed, for the first time, by the plaintiff in Aug. 1977 when admittedly the same had been supplied to the defendant much earlier; (iv) According to the agreement between the parties 25% of the amount was payable to the plaintiff only after the entire work was done to the satisfaction of the defendant. The defendant has in his legal notice to the plaintiff pointed out many defects in the work carried out by the plaintiff. One of the major jobs to be done by the plaintiff was of water proofing the roof. The defendant had complained in the Legal notice that during the rainy season water dripped in the drawing room with the result that his costly furniture and carpets were damaged. The plaintiff has not been able to deny this allegation and has merely stated that the relevant year had experienced a very heavy rain and it was too much for the old house to bear the same. The plaintiff has further stated that he was only required to do renovation and repairs and not to put a new structure to withstand heavy rains or the like calamities which may occur. From this it is apparent that the work done by the plaintiff was not tree from defects: (v) The alleged additional work contains various items and I find that many of those are common to the contractual work and it will have to be gone into at the time of trial whether the additional work alleged by the plaintiff was independent of the work contracted between the parties. ( 8 ) IN my view all the points stated above, raise serious dispute between the parties and it cannot be said that the case set up by the plaintiff is bona fide and unimpeachable one. These are, however, prima facie observations and will not prejudice the case of the parties at the trial. Further there is nothing to show that the defendant is about to leave the country in the near future and even if he leaves the plaintiff will not be in a position to execute the decree against him. The defendant is a senior diplomat of Belgium Embassy and no motives can be imputed to him. ( 9 ) FOR the reasons recorded above, I do not find any merit in the application which is accordingly dismissed with costs. Counsel s fee Rs. 150. 00. The case be listed before the Deputy Registrar (0) for further directions on the 17th of September, 1979.