Khoka Marwari vs Ramchandra Marwari and Others

Chapman, J.—In this case the suit was instituted on the 11th of April 1917; and on the 14th of April the Court heard an application for an attachment of the defendant''s property before judgment. Notice was issued, or purported to issue, on the defendant and on the 21st of April 1917, the date fixed for the disposal of the application, an order was made in the absence of the defendant for the attachment of the defendant''s property before judgment, On the 30th of April, the defendant Sled an objection to the attachment before judgment, in which he denied the allegations made by the plaintiffs and objected to the attachment upon the ground that he had no notice of it. After some adjournments the matter was disposed of on the 14th of August; and the attachment before judgment was vacated by the Court on two grounds-: the first ground being that the defendant had no notice of the proceeding for attachment; and the second ground being that at the time that the order for attachment was made there was no evidence before the Court, either by affidavit or otherwise, that the defendant was about to dispose of or remove any part of the property within the meaning of Order XXXVIII, Rule 5. An appeal has been filed before this Court against the order setting aside the attachment before judgment and directing that the attached properties be at once released. It is urged on behalf of the respondents that no appeal lies.

It is conceded that an appeal could only He under Order XLVII, Rule 7, Sub-rule 1, Clause (a)--that is to say, an appeal would lie to this Court on the ground that the application for review could not be entertained by the Subordinate Judge inasmuch as be was not the Subordinate Judge who made the order for attachment, unless the application for review was based on the ground of discovery of new and important evidence or on the ground of clerical or arithmetical mistake. It is conceded, however, by the appellant that the order of the Subordinate Judge must be upheld inasmuch as, upon his finding that the previous order for attachment was without notice to the defendant, and upon his finding that the notice had been suppressed, it was the obvious duty of the learned Subordinate Judge to vacate the order made by his predecessor. It is immaterial, therefore, whether an appeal lies in this case or not. In any case the order of the learned Subordinate Judge must stand, inasmuch as it was the proper order to make having regard to his finding that the notice had not been served upon the defendant and that the process of the Court had been suppressed.

The only question for our consideration is whether there should be a direction by this Court that the Subordinate Judge should entertain the application for attach ment before judgment. He has not in fact entertained it. He has merely held that his predecessor was wrong on the materials then before him in issuing an order of attachment before judgment. It appears, however, that since the passing of that order of attachment, there has been some evidence on the record, however scanty it might be, to support the application for attachment before judgment; and I think that the proper procedure for the learned Subordinate Judge was, after vacating the order of his predecessor, to proceed to dispose of the application for attachment before judgment on the evidence before him. Therefore, I think it desirable to direct that the application for attachment before judgment should be disposed of in the proper way. I do not wish to suggest that there are upon the record materials which any Court should hold as sufficient to support the application for attachment '' before judgment; but I am of opinion that the application should be disposed of in the proper way. The appeal before us has failed on the grounds taken in the memorandum of appeal and is dismissed with costs.

Atkinson, J.

I concur. I only wish to add one word with regard to what I believe to be important, haying regard the construction to be put upon Order XXXVIII, Rules 1 to 6. In my opinion when a party seeks to obtain an order of attachment before judgment, he must, by definite evidence, satisfy the. Court that there is reasonable cause for believing that the judgment-debtor is about to dispose of the whole or part of his property with a view to defeating his creditors. It is not sufficient, as in this case, to make general allegations. The petitioners in this case have done no more than state generally that they have "ascertained that in order to avoid and delay realization of money that would be decreed in favour of the plaintiffs the defendants are about to dispose of the property mentioned in the schedule annexed." A general statement of this sort without any evidence to support it is, in my opinion, wholly insufficient to prove any intention on the part of the defendant to dispose of any part of his property with a view to defeat his creditors; or to warrant the Court in making an order of attachment before judgment.

I, however, agree with my learned brother that the application for attachment before judgment should be disposed of in the regular way upon the evidence now on the record. This will not, of course, debar the plaintiffs from adducing such additional evidence relative to the state of things existing at the date of the application for attachment as the learned Subordinate Judge may think admissible.