Birender Kumar vs Sudhir Kumar

L.N. Mittal, J.—Defendant Birender Kumar has filed this revision petition under Article 227 of the Constitution of India, impugning order dated 05.07.2013 (Annexure P-1) passed by the trial court, thereby allowing application, filed by respondent-plaintiff Sudhir Kumar under Order 38 Rule 5 of the CPC (in short-CPC) for attachment before judgment of the land of defendant-petitioner. Plaintiff has filed suit against defendant for recovery of Rs. 6,30,000/-, which includes Rs. 5,00,000/- as principal amount and Rs. 1,30,000/- as interest, alleging that the defendant had borrowed Rs. 5,00,000/- from the plaintiff and executed pronote and receipt for the same. The defendant alleged the suit to be false and fabricated. It was alleged that pronote has been obtained by fraud.

The plaintiff, in his application for attachment before judgment, alleged that the defendant had already sold the entire property standing in the name of his father Satnarayan and was negotiating for sale of the disputed land standing in his own name so as to frustrate the decree that may be passed in the suit. The defendant opposed the application.

Learned trial court, vide impugned order (Annexure P-1), has allowed the application and has ordered attachment before judgment of the land in question belonging to the defendant. Feeling aggrieved, defendant has filed this revision petition to assail the said order.

I have heard counsel for the petitioner and perused the case file.

Counsel for the petitioner contended that in fact, defendant had taken loan of Rs. 1,00,000/- from the father of the plaintiff, for which separate suit has been filed by father of the plaintiff and the impugned suit by the plaintiff himself is completely false. However, this contention cannot be accepted at this stage. There is specific allegation by the plaintiff that defendant has already sold the entire property of his father. The said allegation has not even been controverted even in the present revision petition. There is further allegation that defendant wants to alienate the disputed land standing in his own name. The said allegation also stands uncontroverted and in fact, purpose of filing this revision petition is that the defendant wants to alienate the land in question. If he is permitted to do so, the decree, that may be passed in favour of plaintiff, would become futile.

Counsel for the petitioner contended that no opportunity was given to the petitioner to furnish security for compliance with the decree that may be passed in the suit, before ordering attachment before judgment. I offered the counsel for the petitioner to seek instructions if the petitioner is ready to furnish security. After seeking instructions, counsel for the petitioner has not come with a positive reply. Consequently, the aforesaid contention does not lie in the mouth of the petitioner when he is not ready to furnish even security for the satisfaction of the decree.

In view of the aforesaid circumstances, there is no option left, but to order attachment of the land of the plaintiff-petitioner.

For the reasons aforesaid, I find that the impugned order of the trial court does not suffer from any perversity, illegality or jurisdictional error so as to call for interference by this Court in exercise of power of superintendence under Article 227 of the Constitution of India. The revision petition lacks any merit and is accordingly dismissed in limine. Nothing in this order shall have any bearing on merits of the suit.