Ram Dass vs Mahabir

L.N. Mittal, J.—Plaintiff Ram Dass has filed this revision petition under Article 227 of the Constitution of India impugning order dated

10.12.2012 (Annexure P-2) passed by the trial court, thereby dismissing application filed by plaintiff-petitioner for attachment before judgment of

the land of defendant-respondent Mahabir. It appears that defendant is nephew of the plaintiff, although mentioned to be brother of the plaintiff in

the plaint (Annexure P-1). The plaintiff has alleged that the defendant took loan of Rs. 18,10,706/- from the plaintiff, which was transferred from

the bank account of the plaintiff to the bank account of the defendant. The plaintiff has filed suit for recovery of the said amount. It was also

pleaded that the defendant verbally agreed that on failure to repay the aforesaid loan amount with interest at the agreed rate of interest of 2% per

month within one year, the plaintiff shall be entitled to ownership of four kanals land of the defendant, described in the plaint.

In application for attachment before judgment, the plaintiff alleged that the defendant was bent upon to alienate the aforesaid land so as to

deprive the plaintiff of the fruits of the decree. Accordingly, plaintiff sought attachment before judgment of the said land of the defendant.

The defendant, by filing reply, opposed the application and denied having taken loan from the plaintiff and denied verbal agreement of lien over

the land in question, and therefore, plaintiff has no right to seek the relief of attachment before judgment. It was also pleaded that the defendant is in

sound financial condition.

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

Counsel for the parties reiterated their respective stands.

I have carefully considered the matter. The plaintiff has strong prima facie case inasmuch as the amount in question was transferred from bank

account of plaintiff to bank account of defendant. The defendant has also not denied specifically his intention to sell the land in question. On the

contrary, the defendant asserted his right to sell the said land. In these circumstances, plaintiff has made out a good case for grant of requisite relief

under Order 38 Rule 5 of the Code of Civil Procedure. Impugned order of the trial court declining the said relief to the plaintiff suffers from

illegality and jurisdictional error.

Resultantly, the instant revision petition is allowed. Impugned order (Annexure P-2) passed by the trial court is set aside. Application filed by

plaintiff-petitioner for attachment before judgment of the land of defendant-respondent is allowed and defendant is directed to furnish requisite

security to the satisfaction of the trial court for due compliance with the decree that may be passed in the suit. If the security is not furnished within

two months from today, the land in question belonging to the defendant shall stand attached before judgment. Till two months from today, the

defendant shall not alienate the said land.

Nothing in this order shall have any bearing on merits of the suit. Civil Miscellaneous applications, if any pending, stand disposed of as

infructuous.