Kuljinder Singh and Others vs M/s. Punjab Khad Store and Others

Paramjeet Singh, J.—Instant revision petition has been filed under Article 227 of the Constitution of India for setting aside the order dated 08.06.2012.(Annexure P-8) whereby application filed by respondent no. 1-plaintiff under Order 38 Rule 5 read with Order 39 Rules 1 and 2 of the CPC (in short "the CPC") and Section 151 of the CPC, has been allowed. Briefly stated, the facts of the present case are that respondent no. 1-plaintiff filed suit for recovery of Rs. 95390/- (Rs. 64190/- as principal amount and Rs. 31200/- as interest at the rate of 1.5% per month) on the basis of account books. During pendency of the suit, respondent no. 1 filed application under Order 38 Rule 5 read with Order 39 Rules 1 and 2 of the CPC and Section 151 of the CPC for attachment of property of the petitioners-respondents no. 4, 5, 6 and 8, being co-sharers in the property detailed in head note of the application which has been allowed vide impugned order dated 08.06.2012 (Annexure P-8), observing as under:

---- It is clear that the land mentioned in the head note of application is in possession of defendant no. 4, 5, 6 and 8. For the realization of decree in execution which may be passed in the Civil Suit the defendants no. 4, 5, 6 and 8 are directed to deposit Rs. 1,00,000/- as Bank Security till 10.07.2012 failing which the property shall be attached.

Hence, this revision petition.

I have heard learned counsel for the parties and perused the record.

The basic purpose of Order 38 Rule 5 CPC is to secure the rights of the plaintiff, who may ultimately succeed in a civil suit but for this purpose, it is to be shown that the suit is bona fide, plaintiff has unimpeachable case and besides mere averments, there is adequate material on record indicating that defendant is likely to sell his property or is likely to remove his property from territorial jurisdiction of the trial court with an intent to defeat the execution of decree which may be passed against him. The Hon''ble Apex Court in Padam Sen and Another Vs. The State of Uttar Pradesh, has observed that the provisions of Rule 5 of Order 38 are to prevent a decree, that may be passed, being rendered infructuous.

Thus the primary object of attachment before judgment is to prevent any attempt on the part of the defendant to defeat realization of decree that may be passed against him. As observed by the Hon''ble Supreme Court in Sardar Govindrao Mahadik and Another Vs. Devi Sahai and Others, , the sole object behind the order levying attachment before judgment is to give an assurance to the plaintiff that his decree if made would be satisfied. It is a sort of a guarantee against decree becoming infructuous for want of property available from which the plaintiff can satisfy the decree. Thus although in appropriate cases the courts are empowered to make an order of attachment, however, the Hon''ble Supreme Court has also guarded against unwarranted exercise of power under Order 38 Rule 5. The order of attachment before judgment ought not to be mechanically passed, rather while exercising such power the court has to perform the crucial task of balancing the conflicting interest on scale of administration of justice. It has now been settled that the remedy of attachment before judgment is an extraordinary remedy and must be exercised sparingly and strictly in accordance with law and with utmost care and caution so that it may not become an engine of oppression. By way of attaching the property even before crystallizing the respective rights and liabilities of parties, a person cannot be deprived of his valuable rights of developing and using his property for any purpose whatsoever.

The Hon''ble Supreme Court in Raman Tech. and Process Engg. Co. and Another Vs. Solanki Traders, has observed as under:

The power under Order 38 Rule 5 CPC is drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realized by unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out of court settlement, under threat of attachment.

In view of law laid down in judgments referred above, this Court is of the opinion that the trial Court has fallen in error while passing the impugned order dated 08.06.2012 (Annexure P-8), as respondent no. 1-plaintiff has failed to show existence of circumstances which warrants passing of order to deposit Rs. 1,00,000/- as bank security by defendants no. 4, 5, 6 and 8 till 19.07.2012 failing which their property shall be attached. As such there is nothing on record to show that the petitioners may dispose of their property with intent to defeat/delay the execution of decree which is not yet passed against them. The suit has been filed on the basis of bills and account books on the basis of which prima facie presumption cannot be raised. The suit for recovery is still pending; therefore, the application for attachment of property is pre-mature, as allowing such an application at this stage would be pre-judging the cause of respondent no. 1. In view of legal and factual position noted above, the instant revision petition is allowed and the impugned order dated 08.06.2012 (Annexure P-8) is set aside.