JUDGMENT N.N. Mithal, J. - An application for attachment before judgment having been dismissed by the trial Court, the plaintiff has come up in appeal. The plaintiff has filed this suit for the recovery of money in respect of some amount advanced to defendant No. 2 by way of loan in respect of which the other two defendants also under-took liability subsequently and it is alleged that defendant No. 1 who is the father of the other two defendants had undertaken not to transfer the house in question and the plaintiff could realise the amount due by sale of that property. Along with the suit, the plaintiff also applied for an order of attachment before judgment in respect of House No. 18/43, Narain Dixit Lane, Varanasi ostentibely on the ground that the defendants originally belonged to Nepal and had no business at Varanasi and they were planning to leave India for ever. It was alleged that the house in question which stood in the name of defendant No. 1 was the only unmovable property from which the amount for which the decree may be passed could be recovered. It is alleged that in spite of categorical assurance not to transfer the house, they propose to sell the same and already an agreement of sale has been executed by them. The purpose behind this move is to delay and defeat the plaintiff's decree in the instant case. This application was supported by an affidavit but very curiously the allegations made in the application have not been repeated on oath. Only in paragraph 15 of the affidavit, there is a mention that being Nepalis the defendants may leave India at any time with their belongings and they have entered into an agreement of sale only with the object of delaying and defeating the decree that may be passed against them. 2. On this application notices were issued to the defendants and the defendants contested the same. The defendant No. 1 filed his own affidavit and refuted all the allegations made by the plaintiff and denied the various documents filed by the plaintiff in support of his contention. The Court, on a consideration of the material before it, dismissed the application by its order dated 1-1-1982. 3. The defendant No. 1 filed his own affidavit and refuted all the allegations made by the plaintiff and denied the various documents filed by the plaintiff in support of his contention. The Court, on a consideration of the material before it, dismissed the application by its order dated 1-1-1982. 3. Sri S.N. Singh appearing for the appellant has seriously challenged the order or the ground that his application was entirely in conformity with the provisions of Order 3 Rule 5 Civil Procedure Code and the Court ought to have directed attachment before judgement of the property. He has further submitted that actually on 25-5-1981, interim attachment had beer effected under Court's order and there was no justification to recall the same. He also submitted that the Court below has erred in helding that the plaintiff was a money lender and his claim was barred under Section 26 of the U.P. Regulation of Money Lending Act 1976. Lastly he urged that his application has been disallowed on totally irrelevant considerations. 4. Before we proceed to touch upon the merits of the case, we may point out that the trial Court would have been well advised to look into the various provisions of the Code it respect of its right to order attachment of the property before judgment. It is always prudent policy that the Court should have the provision before it under which it purports to act and exercise jurisdiction. It is not uncommon these days to find that the Courts do not devote enough attention to this aspect and the result is that in most cases they go astray an the real controversy in the suit gets ignored. 5. In this case, we find that the application for attachment was moved on 14-4-1981. On the same day the Court passed an order issuing notice to the defendants fixing 24-8-1981 for filing objections and disposal of the application. In the interim period, the Court directed the defendants to furnish security to the extent of the valuation of the suit within one week failing which the property was to remain attached until the date fixed. The order sheet dated 27-4-1981 shows that in spite of sufficient service, no objection had been filed. Hence an order to issue attachment was passed for which steps were to be taken within a week. The order sheet dated 27-4-1981 shows that in spite of sufficient service, no objection had been filed. Hence an order to issue attachment was passed for which steps were to be taken within a week. On the next day, defendant No. 1 applied for inspection of the record which was allowed and 15 days, "time was granted for filing objections. On 13-5-1981 defendant No. 1 again made an application for one month's time to file an objection. On this application the Court passed the following order : "Allowed on cost of Rs. 10/- in a week or issue attachment after a week." The defendant No. 1 failed to pay the cost awarded and, therefore, on. 20-5- 1981, the Court passed an order to issue attachment and time up to 15-7-1981 was given for filing report. It appears that attachment was actually effected on 25-5-1981. 6. From the above narration of facts, it will be obvious that the Court did not at any stage satisfy itself as to the requirement under Order 38 Rule 5 Civil Procedure Code at least none has been recorded by it on record. Before any order can be passed by the Court under this provision, it is necessary that it must be satisfied as to the Intention of the Defendant that he was about to dispose of the whole or part of his property or to remove it from the local limits of Court's jurisdiction with an intent to obstruct and delay execution of the decree. It is unfortunate that the Court did not advert to this requisite element of the Rule before passing the order of attachment. 7. It has been held in a large number of cases that attachment of the property is not issued before judgment as a matter of course or merely because the defendant was not likely to be prejudiced in any manner. The Court also does not issue an attachment before judgment merely to protect the interest of the appellant. 7. It has been held in a large number of cases that attachment of the property is not issued before judgment as a matter of course or merely because the defendant was not likely to be prejudiced in any manner. The Court also does not issue an attachment before judgment merely to protect the interest of the appellant. In fact even where the defendant has entered into an agreement to sell a portion of his property or the fact that he had allowed his property to be sold in execution of a decree or that he had run into heavy debts or was attempting to acquire a loan on the mortgage of the property are not grounds which will necessarily lead the Court to the conclusion that this was being done only with an object to delay and defeat the decree that may be passed. The Court must direct its attention to the allegations made by the plaintiff and in the light of the objections raised by the defendants to consider whether a case had in fact been made out under Rule 5 Order 38. 8. In the instant Case, the defendants admitted having entered into an agreement of sale of the property some time in February 1981 and the sale deed was executed in pursuance thereof on 24-8-1981. It is alleged that this sale deed has been executed with a view to delay and defeat the decree. The mere fact of transferring the property, however, is not enough to lead one to that conclusion. There may be more pressing circumstances for the defendant and he may have some liability to discharge and in that connection he may enter into a genuine transaction in a bona fide manner. These transactions are not hit by Rule 5 Order 38. 9. Sri Singh also tried to urge that the very fact that an agreement was there and this fact is admitted to the plaintiff in his application for attachment before judgment a duty was cast on the defendant to first seek the permission of the Court before executing the sale deed. We do not think that any such prior permission is required. Learned counsel referred to Section 52 of the Transfer of Property Act in this connection. In our opinion, reference to this section is absolutely off the point. The property sought to be attached is not subject matter of the suit. We do not think that any such prior permission is required. Learned counsel referred to Section 52 of the Transfer of Property Act in this connection. In our opinion, reference to this section is absolutely off the point. The property sought to be attached is not subject matter of the suit. Besides the section does not contemplate seeking permission from the Court while the suit is pending. This submission has been noticed by us only to be rejected. 10. However, we entirely agree with the appellant that the observation of the Court as to the applicability of U.P. Regulation of Money Lending Act, 1976 was totally misplaced in the absence of any finding that the plaintiff was a money lender in the sense used in the Act. As held in Gauri Shanker Rai v. Kailash Rai, a single transaction of lending money cannot make the creditor a money lender unless it was done as a part of the business and there is a regularity of transactions coupled with other circumstances. On a mere allegation that money had been advanced to the defendant on various occasions, a finding that the plaintiff was a money lender and, therefore, barred from putting forward his claim under the said Act was, therefore, totally unwarranted. 11. In the end, learned Counsel for the appellant also submitted that the plaintiff's interest should be safeguarded in some manner. Merely because the plaintiff has come with a claim in the suit, it does not mean that some sort of protection ought to be granted to him. There are various provisions in the Code and if anyone of them can be of any assistance to the plaintiff, he can always take recourse to them. One such method is by seeking attachment before judgment of the property which the plaintiff had in fact tried to avail. However, if he fails in his efforts to do so, it is not necessary that the Court should even in such a case try to protect his interest. 12. In view of what we have said above, We do not find that any ground has been made out for attachment of the property before judgement and the Court below was right in rejecting the same. 13. The appeal, therefore, has no merit. It is accordingly dismissed with costs.