JUDGMENT : S.C. Mohapatra, J. - Aggrieved by an order under Order 38, Rule 5, Code of Civil Procedure, Defendant No. 2 has preferred this appeal under 43, Rule 1(q) of the said Code. 2. Defendant No. 1 took a loan from the Plaintiff securing the same by deposit of a title deed in respect of a house belonging to him. Defendant No. 2 was a surety. On the allegation that the loan was not discharged suit for recovery of Rs. 6,049.59 paise was filed. On 5.7.1977 an application for attachment before judgment purported to be under Order 38, Rule 5, CPC was filed. 3. In the application the ground for attachment was that the house which was the security has been solei by Defendant No. 1 with the active connivance of Defendant No. 2 which is a fraud of Defendant No. 1 to create multiplicity of proceeding with the object of defeating the claim of the Plaintiff. Since Defendant No. 2 was to receive Rs. 6,622.76 paise from the Plaintiff, it was prayed for attachment of the same since Defendant No. 3 has no property at Berhampur and he is a foreigner. 4. A conditional order of attachment was made by the trial court. It was made absolute on the only finding that the Defendant No. 2 has not been able to satisfy about his place of business and he has sufficient assets to satisfy the decree that may ultimately be passed. 5. By order dated 31-3-1980, this Court stayed the impugned order and there is no attachment before judgment subsisting now. Plaintiff has not moved to get the interim order modified. Thus for six years the Plaintiff was feeling safe to recover the amount if decreed without conditional attachment. The intention behind Order 38, Rule 5, CPC is to protect the Plaintiff from the mala fide attempt of Defendant to defeat the claim. Even if all the ingredients of Order 38, Rule 5, Code of Civil Procedure. He satisfied, the Court may not in some circumstances give the direction in exercise of the power. To lerance of the Plaintiff for six years and absence of any fresh action of Defendant to defect the claim of the Plaintiff is a sufficient ground not to give the direction under Order 38, Rule 5, Code of Civil Procedure. 6. In this case the loan is secured. To lerance of the Plaintiff for six years and absence of any fresh action of Defendant to defect the claim of the Plaintiff is a sufficient ground not to give the direction under Order 38, Rule 5, Code of Civil Procedure. 6. In this case the loan is secured. A voidance of multiplicity of litigation is not one of the grounds under Order 38, Rule 5 CPC for directing attachment before judgment. In any case, I am not able to appreciate that dispose of property by Defendant No. 1 would be ground to attach the property of Defendant No. 2 before judgment merely because he is a surety for the loan. Such wide application of the provision would be an instrument in the hands of Plaintiff to harass a Defendant unconnected with the disposal by another Defendant. 7. Mere fact that Defendant No. 2 has no business within the jurisdiction of the Court and he is an outsider by itself will not be sufficient to attach his properties before judgment. The pre-condition for issue of the direction is the intention of the Defendant to obstruct or delay the execution of any decree that may be passed against him and with that intention he was about to dispose of the whole of any part of his property or was about to remove the whole or any part of his property from the jurisdiction of the Court. There is no such finding in this case. 8. Attachment of property during pendency of a suit is a harsh remedy and the Courts are to give clear finding in terms of the language of the provision about the satisfaction of the ingredients before issue of such attachment. Mere inability of Defendant No. 2 to state where he is carrying on business would not be a ground to issue attachment without anything more. 9. In the result, the appeal is allowed. Since the Respondents have not appeared in this Court, there shall be no order as to costs. Final Result : Allowed