Gagrat and Co. vs Ismail

Dixit, J.—This revision-petition is directed against an order made by the Additional District Judge of Indore under O. 38, R. 5, C.P.C. in a suit filed by the plaintiff opponent against the applicant for recovery of Rs. 10,500 on account of certain building and constructional work done by him as a sub-contractor of the defendant applicant. By the order sought to be revised the learned Additional District Judge of Indore directed the defendant to furnish security to the extent of Rs. 12,000 or to show cause on the appointed date why security should not be furnished and also made an interim order attaching an amount of Rs. 90,000 belonging to the defendant which lay in deposit with the Public Works Department of the Madhya Bharat Government.

Mr. Bharucha, learned counsel for the petitioner challenges the legality of the order under O. 38, R. 5 on the ground that the learned Additional District Judge passed the order without complying with the provisions of O. 38, R. 5, C.P.C. and without there being any material before him to tenable him to be satisfied that the defendant was about to dispose of the property or was about to remove it from the jurisdiction of the Court with intent to obstruct or delay the execution of any decree that might be passed. It was urged that the affidavit filed by the plaintiff non-applicant in support of his application under Order 38 Rule 5, C.P.C. was not verified by him in accordance with law and should not have been acted upon by the lower Court. On behalf of the plaintiff non-applicant Mr. Chitale first raised a preliminary objection that even if the learned, Additional District Judge passed the order in question without complying with the provisions of O. 38, R. 5, C.P.C., the order though irregular and objectionable could not be said to be one ultra-vires or without jurisdiction; that the learned Court had jurisdiction to make the order and even if it was irregular it could not be revised under Sec. 115, C. P. C. Learned counsel for the plaintiff relied on B. Prag Nath Vs. Mt. Indra Devi, , Badri Prasad Jhunjhunwalla Vs. Babulal Jhunjhunwalla and Others, and Mohammad Ali Ismail and Another Vs. Baldeo Singh, in support of his contention that an order for attachment before judgment passed without complying with Rules 5 and 6 though irregular and objectionable, was not ultra fires and void ab initio. He also placed reliance on Keshardeo Chamria Vs. Radha Kissen Chamria and Others, to show that the order of the lower Court under O. 38, R. 5, C.P.C. was not open to revision. He then proceeded to argue that it was not necessary for the learned trial Judge to state in his order the grounds of his "satisfaction" as to the matters mentioned in O. 38, R. 5. C.P.C. and the affidavit which was filed by the plaintiff and which was properly verified, furnished sufficient material for the making of the order under revision.

In my judgment, this revision-petition must be accepted and the order made by the learned Additional District Judge under O. 38, R. 5, C.P.C. must be set aside. The jurisdiction under O. 38, R. 5, C.P.C. is extraordinary and has to be exercised with the utmost caution. An order of attachment before judgment cannot be made on the mere asking of the plaintiff. Before making the order, the Court must be satisfied not only that the defendant is really about to dispose of his property or about to remove it from its jurisdiction but also that the disposal or removal is with intent to obstruct or delay the execution of any decree that may be passed, The satisfaction must be of the Court as regards these matters and it must be based on some material derived either from the affidavit of the party applying under O. 38, R. 5 or otherwise It is no doubt not necessary for the Court to state in the order passed under O. 38, R. 5 the grounds on which its satisfaction is founded, but there must be some material on record to indicate that the satisfaction was not illusory. It is not necessary to refer to numerous authorities in which it has been held that the Court should be fully satisfied, before it proceeds under O. 38, R. 5, C.P.C., that the defendant is really disposing of his property with intent to obstruct or delay the execution of any decree that may be passed against him. A reference may, however, be made to the decision of the Calcutta High Court in Premraj Mundra Vs. Md. Maneck Gazi and Others, where several authorities laying down the above principle have been reviewed, There is also a decision of this Court in Civil Revision No. 202 of 1949 (V. Ramswami Ayer vs. N. Ramsuram Ayer) where Sen. J. has held that:--

Before exercising jurisdiction under O. 38, R. 5, C.P.C. and passing orders for attachment before judgment, the Court has to satisfy itself of the practical certainty of plaintiff''s success and of existence of grave danger and of a real fear that a dishonest defendant undoubtedly liable is making away with probable fruits of the judgment. It is not sufficient to merely allege that defendant is likely to dispose of property, nor is it sufficient to state that he is about to dispose of it without stating the source of such information. The sources or grounds of information or belief must be stated with sufficient particularity in the affidavit as required by rule 26, Rules and Orders (Civil) Nagpur High Court.

In the instant case, the only material before the learned Additional District Judge was an affidavit filed by the plaintiff on 21st September, 1953. In that affidavit the plaintiff simply stated that so far as his information went, the defendant was not a resident of Madhya Bharat; that he did not own any property in Madhya Bharat; that a contract which he had obtained for the construction of Mahatma Gandhi Memorial Medical College building had been cancelled on account of his misconduct and that he had closed his branch office in Indore. The plaintiff also stated in the affidavit that the defendant had threatened him that now that his contract had been cancelled he would withdraw the amount of his deposit with the Government and go away and that the plaintiff would not be able to recover anything. . This affidavit does not contain any verification as required by rules 26 and 27 of Chapter 1 of part 1 of Rules and Orders relating to Civil Courts issued by the Madhya Bharat High Court. It does not clearly express how much is the statement of the deponent''s knowledge and how much is based on his information and belief. It does not state the grounds of belief or the source of information. The affidavit only bears the verification that it was sworn on oath. Such an affidavit is, in my opinion, valueless and cannot be acted upon (see Premraj Mundra Vs. Md. Maneck Gazi and Others, . In the Calcutta case it was observed that an affidavit in support of an application under O. 38, R. 5 must not be vague and must be properly verified and that where it is affirmed true to knowledge, or information or belief, it must be, said as to which portion is true to knowledge the source of information should be disclosed and the grounds for belief must be stated. The learned Additional District Judge was cot justified in basing his order on this affidavit when it was not verified properly. If this affidavit is excluded as it must be then there is no material whatsoever on which it can be held that the lower Court was satisfied that the defendant was disposing of or removing any property with intent to obstruct or delay the execution of any decree that may be passed against him. It is also noteworthy that the affidavit does not contain any statement to show that It is with the intention to defeat the plaintiff''s claim that the defendant is withdrawing the amount of his deposit. All that it reveals is that the intended withdrawal of the amount is because of the cancellation of a contract in favour of the defendant and that because of this withdrawal the plaintiff will have difficulty in realising the amount in the event of a decree. This is quite different from saying that the proposed withdrawal of the amount is with intent to defeat or delay the execution of any decree that may be passed against the defendant. The order passed by the learned Additional District Judge is thus clearly one in violation of the provisions of O. 38, R. 5, C.P.C. and must be set aside.

I am unable to accept the contention of the learned counsel for the non-applicant that the order under O. 38. R. 5, C.P.C. cannot be disturbed in revision by this Court. The authorities cited by the learned counsel no doubt show that an order made without complying with Rules 5 and 6 of O. 38, C.P.C. is irregular and objectionable but not ultra vires or void ab-initio. Though it can not be said that the lower Court acted without jurisdiction in making the order, it cannot be denied that it acted illegally and with material irregularity in making the order without complying with the provisions of O. 38, R. 5, C.P.C. According to the Supreme Court''s decision in Keshardeo Chamria Vs. Radha Kissen Chamria and Others, , the High Court can interfere under clause (c) of Sec. 115 C.P.C., when a subordinate Court in exercise of its jurisdiction has acted illegally or with material irregularity, that is to say where the Court though possessed of jurisdiction commits an error or irregularity of procedure, or violates or disregards any rule of law or procedure in the manner of arriving at a decision. Here in making the order, that he did, the learned Additional District Judge wrongly acted on the plaintiff''s affidavit which was not in law an affidavit at all and when there was no material whatever for the requisite satisfaction.

In the result, I would accept this petition, set aside the order of the Court below and dismiss the application of the plaintiff under Order 38 Rule 5 C.P.C. The plaintiff non-applicant shall pay to the applicant his costs of this petition.