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2010 DIGILAW 614 (JK)

Gurpreet Singh v. Ab. Gani Dar

2010-12-11

Hasnain Massodi

body2010
1. In Suit for recovery of Rs. 6,93,760, the plaintiff--respondent No. 1 herein on 20th May 2009 filed an application under Order 38 for attachment of the defendants property viz truck bearing registration No. HR-38F-5192 before the judgement. The respondent 1’s case was that the property sought to be attached before the judgement was likely to be removed by the petitioner herein and other defendants--all residents of Ludhiana Punjab, outside the jurisdiction of the Court and thus the respondent No. 1 deprived of the fruits of litigation. The respondent No. 1 insisted that he had a fool proof and winnable claim against the petitioner and other defendants and suit instituted by the respondent No. 1, was likely to be decreed in his favour. 2. The Trial Judge on 20th May 2009 after summarising the averments made in the plaint as well as the application, issued notice to the petitioner and other defendants requiring them to file their objection, if any, to the prayer made in the application and to show cause why petitioner and other defendants be not asked to furnish security to the tune of the suit amount or in alternative show cause against the attachment before the judgment of truck No. HR-38F-5192 3. The petitioner and defendants 2 in their reply admitted to be owner and attorney holder of the vehicle in question and insisted that the defendant No. 1 in the suit employed as a driver by the petitioner and defendant No. 2 in the suit, had nothing to do with the vehicle in question. The petitioner and other defendant sought to wriggle-out of any liability to pay compensation on account of 1072 fruit boxes belonging to respondent No. 1 allegedly misappropriated by defendant No.1 -- truck driver, on the ground that the defendant No. 1 had while accepting the consignment acted on his own without any instructions from the petitioner and defendant No.2. Learned Trial Judge on going through the pleadings and after hearing Learned Counsel for the parties directed release of the truck bearing No. HR-38F-5192 in favour of registered owner (petitioner) subject to condition that the petitioner and defendant No. 2 furnish a bank guarantee to the tune of Rs. 6,93,760, from a nationalized bank valid till disposal of the suit, so that the decree, if any, passed in the suit is executed. 4. 6,93,760, from a nationalized bank valid till disposal of the suit, so that the decree, if any, passed in the suit is executed. 4. The petitioner questions the order dated 2nd September 2009 in the present appeal on the grounds that the suit as well as the application under Order 38 CPC has been filed by the respondent No. 1 to block release of truck in question seized by Police Station Shopian in case FIR No. 210 of 2008 and that the order impugned in the petition is contrary to the law and liable to be set aside. It is pleaded that the dispute between the parties is purely "criminal in nature" and that the civil suit is not maintainable; that the plaint as well the application, do not disclose prima-facie case in favour of the respondent No.1. It is averred that the power to order attachment under Order 38 CPC is preventive and not punitive in nature and the Court is expected to examine all the relevant circumstances and not to pass order of attachment in a mechanical manner, without application of mind. It is further pleaded that the Trial Judge while making the order in question has not recorded any satisfaction as regards fundamental ingredients of Order 38 Civil Procedure Code. The order impugned in the appeal is assailed as harsh and in effect compelling the petitioner and defendant No.2 to deposit the suit amount at the very threshold of civil suit. 5. Heard and considered. 6. Order 38 Rule 5 CPC makes Provision for attachment before judgement so as to enable the plaintiff to get fruits of the decree that may eventually be passed and prevent the decree from being rendered infructuous. The power with which a Civil Court is vested under Order 38 Rule 5 CPC is an extra ordinary power and is to be exercised with due care and caution. It needs no emphasis that an order before attachment on flimsy grounds has potential to expose the defendant to immense hardships and even to ruin his reputation, business, credibility and standing the society. It needs no emphasis that an order before attachment on flimsy grounds has potential to expose the defendant to immense hardships and even to ruin his reputation, business, credibility and standing the society. It is against said back drop that the Order 38 Rule 5 lays down important conditions to be adhered to, by the Trial Court before making an order of attachment before the judgement and order 38 Rule 5 Sub Rule 4 declares an order made in violation of Provisions of order 38 Rule 5 Sub Rule 1 as void. The Trial Court if satisfied, by an affidavit or otherwise, that the defendant with intention to obstruct or delay the execution of any decree that may be passed against him is about to dispose of whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of Court, it may follow either of the courses mapped out in Order 38 Rule 5 Sub Rule 1. The Trial Court may either straightway direct the defendants, within a time to be fixed by it to furnish security, in such a sum as may be specified in the order, to produce and place at the disposal of the Court, as and when so required, the property suspected to be disposed of by the defendant or to be removed from the local limits of the jurisdiction of the Court or the value of said property intended to be disposed of or removed from the jurisdiction of the Court, or any portion thereof. The other option given to the Court is to issue notice to the defendant requiring the defendant to appear and show cause why the defendant should not be asked to furnish the security to produce and place at the disposal of Court, the property that the defendant is believed likely to dispose of or to remove from the local limits of jurisdiction of the Court. It is only after the defendants fails to show cause why he should not furnish security or fails to furnish security in terms of Order 38 Rule 5 Sub Rule 1, that the Court under Order 38 Rule 6 Sub Rule 1, may order that the property or a part thereof which appears to the Court to satisfy the decree be attached. The Court under Order 38 Rule 5 Sub Rule 3 is also clothed with the power to direct conditional attachment of the whole or any portion of the property to produce which the defendants is in terms or Order 38 Rule 5 Sub Rule 1, asked to furnish the security or asked to show cause why he should not furnish such security. 7. In the present case when respondent No. 1 approached the Trial Court with application under Order 38 CPC for attachment before the judgement, the Court issued a notice to the petitioner and other defendants to show cause why the petitioner and other defendants should not furnish the security to the tune of Rs. 6,93,760, or in alternative to show cause why their truck bearing registration No. HR-38F-5192 may not be attached. Learned Trial Judge while making the order, also directed interim attachment of the vehicle in question. Learned Trial Judge thereafter on 2nd September 2009 in effect ordered release of the vehicle to the petitioner and defendant No. 2 subject to their furnishing of a bank guarantee in the suit amount (Rs. 6,93,760,). The Leaned Trial Judge was of the opinion that attachment of the vehicle was likely to result in break down of the vehicle and that it was also not possible to prevent the petitioner and defendant No. 2 from taking away the vehicle from the local limits of the jurisdiction of the Court in the event the vehicle was released in favour of the petitioner and defendant No. 2. 8. A closer look at the order dated 20.05.2009 as also the order dated 02.09.2009 reveals that the Learned Trial Court completely misdirected itself and passed the aforementioned order oblivious to the mandate of Order 38 Rule 5 Sub Rule 1. The Order 38 CPC, as must be clear from the above brief discussion, can be pressed into service only when there is apprehension of the defendant disposing of whole or any part of his property or remove such property from the local limits of the jurisdiction of the Court with intention to obstruct or delay the execution of decree that may be passed against him. The Court is thus required to either ask the defendant to furnish security, to produce the property in respect of which there is an apprehension that it may be disposed of or removed from local limits of the jurisdiction of the Court or to ask the defendant to show cause why he should not be asked to furnish security. All that the defendant in either case is required to do, is to furnish security in such a sum as may be specified by the Court, to produce and place at the disposal of the Court as and when so required the property in question or value thereof. Order 38 CPC does not contemplate an order or direction asking the defendant to deposit anticipated decretal amount or furnish a bank guarantee in the amount claimed by the plaintiff. Learned Trial Judge in effect has made use of Order 38 to ask the petitioner/ defendant to furnish the bank guarantee in the amount claimed in the suit, at the very threshold. Learned Trial Judge on 20th May 2009 when application under Order 38 CPC was taken up opted not to ask the defendants/ petitioner to furnish security and instead decided to provide petitioner and defendants an opportunity to show cause why they may not be asked to furnish security. The order does not spell-out the purpose for which the security is to be furnished. Learned Trial Judge ought to have asked the petitioner and defendant No. 2 to furnish security, to produce and place the property--in the present case truck No. HR-38F-5192 at the disposal of the Court or to show cause why the petitioner and defendants may not be asked to furnish such security. The order does not make mention of production and placement of the property in question at the disposal of Court. Again Learned Trial Judge in alternative asked the petitioner and defendant No. 2 to show cause why the property in question may not be attached before the judgement. Order 38 Rule 5 does not contemplate such a notice to the defendant in the suit. It is only in the event of failure of the defendant to show cause against the order requiring the defendant to furnish security or failure to furnish security when asked to do so, that the Court can in terms of Order 38 Rule 5 Sub Rule 6 order attachment of the property. It is only in the event of failure of the defendant to show cause against the order requiring the defendant to furnish security or failure to furnish security when asked to do so, that the Court can in terms of Order 38 Rule 5 Sub Rule 6 order attachment of the property. The order dated 20th May 2009 is thus not inconformity with Order 38 Rule 5 Sub Rule 1. The Learned Trial Judge has thereafter proceeded to decide the application under Order 38 CPC as if Learned Trial Judge was as a Judicial Magistrate 1st. Class, disposing of an application under 516-A Cr.P.C. for release of property seized during investigation of a criminal case. Learned Trial Judge instead of making an effort to find out whether ingredients of Order 38 Rule 5 Sub Rule 1 were satisfied and whether petitioner and defendant No. 2 had failed to show cause why they should not furnish the security, made a complete departure from the procedure laid down in the aforesaid provision and focused his attention on the fall-out of continued retention of vehicle in question by Police Station, Shopian. Learned Trial Judge thereafter directed release of the truck in favour of its owners i.e. petitioner and defendant No. 2 subject to their furnishing of bank guarantee in the suit amount. Learned Trial Judge did not specify the purpose for which petitioner and defendant No. 2 were asked to furnish bank guarantee. The petitioner and defendant No. 1 were in effect asked to deposit the suit amount before the trial commenced in the suit in as much as the petitioner and defendant No. 1 would not be in a position to procure bank guarantee unless the amount in which bank guarantee is furnished does not lie or is not deposited with the bank. 9. In the circumstances, and for the reasons discussed above and viewed from all angles the orders dated 20.5.2009 and 02.09.2009, can not stand legal scrutiny and are against the mandate and spirit of Order 38 Rule 5 and Rule 6 CPC. The order dated 02.09.2009 in which earlier order dated 20.5.2009 has merged, is accordingly set aside. Learned Trial Judge shall in case respondent No. 1 continues to prosecute the matter, dispose of the application under Order 38 CPC, in accordance with law.