Satpal Singh and Another vs Sunil Kumar Amit Kumar and Another

Swatanter Kumar, J.—Common question that arises for consideration in both these revision petitions being C.R. No. 1716 of 1996 and C.R. No. 1277 of 1996, is whether non-recording of satisfaction as postulated under the provisions of order 38 Rule 5 of the Code of Civil Procedure, before passing any order of attachment under those provisions would or would not vitiate the entire order.

The plaintiff had filed an application under Order 38 Rule 5 of the Code before the Trial Court to which reply was filed by the defendants disputing the claim of the plaintiff-Bank with a prayer that the application be dismissed.

The provisions contained in Rule 5 of Order 38 of the Code are stringent provisions. The same vests the defendant in the suit with certain definite penal consequences. Neither these provisions can be invoked in a casual manner nor an order thereunder could be passed in a routine manner. The application must contain definite averments. The allegations stated in the application must specify the ground on which the Court is required to exercise its discretion to call upon the defendants to furnish security etc. This application has to be supported by an affidavit with similar averments. Once the application contains such specific grounds as envisaged in Clause A, B of Sub-rule 1 of Rule 5 of Order 38 of the Code, then the burden is on the Court to record its definite satisfaction in this regard. The satisfaction of the Court is a condition precedent to passing of an order under these provisions. The Court must apply its mind whether it would require the defendant to furnish security within the directed period or whether the Court would like to issue notice to show cause why the defendant should not furnish such security.

In the present case, admittedly, the Court has not recorded any satisfaction as stipulated under these provisions nor it complied with the provisions of Sub-rule (1) of Rule 5 of Order 38 of the Code. Non-adherence to these statutory rules renders the order ineffective and void. By Amending Act of 1976 the Legislature had introduced Sub-rule (4) to Rule 5 of Order 38 of the Code. Introduction of these provisions in the Statute clearly indicates the unambiguous and definite intention of the Legislature with regard to definite compliance of the mandatory provisions as indicated in Sub-rule (1) of the said rules.

The present order, thus, does not only lacks recording of satisfaction by the Court with regard to existence of the grounds but also indicate the casual manner in which the trial Court has passed the order. The mere fact that a property is attached in another case, cannot by any stretch of imagination itself be a ground for attachment of the property under these provisions in another case. Not even a word has been stated by the Court as to why the Court has deemed it necessary to pass an order of attachment under these provisions. It will be unfortunate if these provisions are permitted to be invoked in this casual manner and that too without even recording a word of its satisfaction with regard to existence of the grounds stated in Clauses (a) and (b) and proviso to Sub-rule (i) of Rule 5 of Order 38 of the Code. It has been repeatedly held that if the affidavit does not make out a prima-facie case and that the ingredients for invoking civil extra-ordinary jurisdiction are lacking, order of attachment before judgment would not normally be passed.

The basic feature of this stringent provision is primarily to prevent the defendant from escaping the law and the decree obtained by the plaintiff may not be rendered ineffective. The defendant with this intention must be about to dispose of whole or any part of his property or is about to remove whole or any part of his property from the local limits of the jurisdiction of the Court. Vague statements by a plaintiff cannot form basis for passing of such orders. The existence of cogent material before the Court and satisfaction by the Court in regard to existence of grounds and need for passing such an order are paramount features which have to be apparent from the order itself. The impugned order not only lacks all these essential ingredients but can safely be termed an order which is not speaking one and is without any reasoning.

In these circumstances, the order dated 27.2.1996 is set aside and the matter is remanded back to the trial Court for adjudication upon the application filed by the plaintiff under Order 38 Rule 5 of the Code afresh in accordance with law. There shall be no order as to costs.

Both the revision petitions are accordingly dispose of.