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1985 DIGILAW 344 (MP)

GUJAM HAIDER KHAN v. STATE BANK OF INDIA

1985-08-05

G.L.OZA

body1985
JUDGMENT : ( 1. ) THIS is a revision petition filed by the petitioner against an order passed by Civil Judge (Class I) Mahasamund, in C. S. No. 9-B/81, dated 11-11-1982. ( 2. ) DURING the pendency of the suit, it appears that an ex parte order was passed against the petitioner. N. A. No. 2 was defendant No. 2 who was the guarantor of the loan taken by the petitioner defendant from N. A. No. 1 State Bank of India, the plaintiff in the suit. This guarantor, when the proceedings were ex parte, made an application that the petitioner defendant was going to dispose of the property which was hypothecated with the bank and thereby would make it impossible for the bank to recover the amount. On this application, the Court issued an order directing the petitioner to furnish security for payment of the suit amount. Later, the petitioner moved an application for setting aside the ex parte order and also for setting aside this order directing him to furnish security. ( 3. ) AFTER hearing both the parties, the learned court below set aside the ex parte order, but as regards the order directing the petitioner to furnish security, the order was maintained. ( 4. ) LEARNED counsel for the petitioner contended that the Court passed an order under Order 38, Rule 5 not on a prayer made by the plaintiff, but on a prayer made by the co-defendant and, therefore, the court committed an error of jurisdiction. It was also contended that although the Court set aside the ex parte order, it should have consequently set aside the order directing the petitioner to furnish security. ( 5. ) ORDER 38, Rule 5 (1) of the Civil Procedure Code talks of satisfaction of the court about an act of the defendant with intent to obstruct or dealy the execution of any decree. It nowhere provides that this satisfaction the Court must reach on the basis of allegations made by the plaintiff. The language of Order 38, Rule 5 (1) of the Civil procedure Code clearly indicates that the Court may be satisfied on the information which may be brought before the Court by any of the parties or anyone. Apart from it, this objection was also not reaised before the Court below. The language of Order 38, Rule 5 (1) of the Civil procedure Code clearly indicates that the Court may be satisfied on the information which may be brought before the Court by any of the parties or anyone. Apart from it, this objection was also not reaised before the Court below. Under these circumstances it could not be said that the order passed by the Court below is without any jurisdiction or in excess of jurisdiction. ( 6. ) THE Court, below, although set aside the ex parte order, but even after hearing the petitioner, was atisfied that the order directing him to furnish security deserved to be maintained. It could not be contended that the Court was bound to set aside the order after hearing the petitioner. Under these circumstances, I see no error of jurisdiction committed by the Court below. ( 7. ) THE revision petition is, therefore, without any substance. It is, therefore, dismissed. N. A. No. 1 shall be entitled to costs of this revision petition. Counsels fee as per schedule, if certified. Petition dismissed.