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2011 DIGILAW 507 (CAL)

Tapan Tanay Haldar v. Gopal Chandra Haldar

2011-04-06

PRASENJIT MANDAL

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Judgment :- Prasenjit Mandal, J. This application is at the instance of the plaintiff and is directed against the order no.95 dated March 18, 2010 passed by the learned Civil Judge (Senior Division), Sixth Court, Alipore, District – South 24 Parganas in Money Suit No.19 of 2001 thereby rejecting an application under Order 38 Rule 5 of the C.P.C. The plaintiff/petitioner herein instituted a suit being Money Suit No.19 of 2001 claiming Rs.1 crore for defamation. The defendants/opposite parties are contesting the said suit. During pendency of the suit, the plaintiff filed an application under Order 38 Rule 5 of the C.P.C. on December 14, 2001 and the defendants filed their written objection against the said application. Upon hearing both the sides, the learned Trial Judge rejected the application for attachment before judgment. Being aggrieved, this application has been preferred by the petitioner. Now, the question is whether the impugned order should be sustained. Upon hearing the learned counsel for the parties and on going through the materials on record, I find that the ground of defamation is that as per order of the Court, the parties were to maintain status quo with regard to the suit property. But, instead of doing that, the defendant took Rs.50,000/- only from each of the proforma defendants for allowing them to use the suit properties as passage to their residence and that the defendants are going to dispose of the suit properties. For that reason, they prayed for attachment before judgment. It may be noted herein that the contesting defendants are the co-owners of the properties mentioned in schedule ‘A’, ‘B’ and ‘C’ of the plaint. The plaintiff also claims as a co-owner of the said properties. Thus, I find that the plaintiff as a co-owner, has claimed attachment before judgment in respect of the ancestral properties against the other co-owners. He has prayed for attachment of the properties, as described in schedule ‘A’, ‘B’ and ‘C’ of the plaint. Previously, one partition was held amongst the co-owners. The original owner of the suit properties executed and registered a deed of family settlement dividing his properties in the year 1974 and he settled of his properties in favour of his two sons, namely, Gopal Chandra Halder and Gobinda Chandra Halder. Previously, one partition was held amongst the co-owners. The original owner of the suit properties executed and registered a deed of family settlement dividing his properties in the year 1974 and he settled of his properties in favour of his two sons, namely, Gopal Chandra Halder and Gobinda Chandra Halder. Subsequently, the plaintiff filed a suit for partition being Title Suit No.22 of 1997 and the plaint was returned to the plaintiff by an order no.32 dated September 30, 1982 with the observation that the plaintiff was not a co-sharer in the schedule ‘A’ and ‘B’ of the properties and that if the plaintiff had any share in the schedule ‘C’ properties, the plaintiff was given liberty to institute a suit with the Court having jurisdiction over the ‘C’ schedule properties. But still then, the plaintiff is proceeding with the present suit claiming his right, title and interest in the suit properties. Now, the object of Order 38 Rule 5 of the C.P.C. is to prevent the defendants from defeating or obstructing the decree that may ultimately be passed in favour of the plaintiff when the defendant is attempting to dispose or remove the same from the jurisdiction of the Court. The plaintiff has also to prove the prima facie case that he has a good case of getting a decree against the defendants. Simply on the belief that it will be just to pass an order of attachment will not do. From the facts stated above, I find that there is every doubt whether the defendants have lowered the prestige of the plaintiff by taking such a course of allowing the proforma defendants to use the suit passage by taking money of Rs.50,000/- from each of the proforma defendants. Therefore, it is difficult to believe that the plaintiff has established prima facie case to have an order of attachment before judgment against his co-owners. In view of the above facts, I am of the view that the basic principles in granting attachment before judgment have not been fulfilled by the plaintiff. The learned Trial Judge is quite justified in rejecting the application under Order 38 Rule 5 of the C.P.C. I hold that there is nothing to interfere with the impugned order. Accordingly, the revisional application is dismissed. Considering the circumstances, there will be no order as to costs. The learned Trial Judge is quite justified in rejecting the application under Order 38 Rule 5 of the C.P.C. I hold that there is nothing to interfere with the impugned order. Accordingly, the revisional application is dismissed. Considering the circumstances, there will be no order as to costs. Urgent xerox certified copy of this order, if applied for, be supplied to the learned Advocates for the parties on their usual undertaking.