Shamsudeen vs Ms. Kotakunnel Traders

B.M. Thulasidas, J.—The defendant in O.S. No. 170 of 1992 on the file of the Sub Court, Muvattupuzha, who is the respondent in I.A. No. 702 of 1992, is the appellant-The above suit filed by the respondent herein is to recover Rs. 65, 414, 38 stated to be due la respect of transactions he had with the appellant who issued a cheque which was dishonored. He filed the above I.A. under Order 38 Rule 1 C.P.C. for arrest of the appellant and another petition under Order 38 Rule 5, for attachment of property. The appellant was arrested by the Amin with police help and produced before court. By the order which is challenged in this appeal, he was released on executing kaichit and on the basis of the surety bond executed by his brother and on undertaking that he would pay half the amount on 10-6-92. According to the appellant, there was no ground for his arrest before judgment, that the court acted without sufficient materials, that he furnished security for his presence in court and executed a Kychit which was accepted, that the court was not justified to direct him to deposit half the plaint amount which was in excess of jurisdiction.

A counter affidavit has been filed on behalf of the respondent where it is stated that in fact, the appellant had made attempts to transfer his property and also to leave the country, to stultify the decree that may be passed against him, and therefore, the court was justified to pass the impugned order in the particular circumstances of the case. There is nothing illegal about it and there is no scope for interference.

Heard.

No doubt, in the affidavit filed in support of I.A. 702 of 1992, allegations, were made to the effect that the appellant was trying to leave the country with a view to obstructing execution of the decree that may be passed against him in the suit I and not concerned with the veracity of the allegation which has been denied. Warrant was issued pursuant to clause (b) of Rule 1 of Order 38 C.P.C. The appellant was arrested with police aid and produced before court. He was asked to show cause why he should not furnish security for his appearance. He allegedly showed cause and also furnished security for his appearance which was done in terms of Rule 2. The court accepted the affidavit and the surety bond executed by his brother. But even then, the court made a further direction that he should undertake to pay half the amount claimed in the suit Under rule 2 where the defendant arrested pursuant to the warrant under rule 1 failed to show cause, "the court shall order him either to deposit the court money or other property, sufficient to answer the claims against him or to furnish security for his appearance of any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks it in regard to the sum which may have been paid by the defendant" under the proviso to rule 1. In terms the court cannot simultaneously direct the defendant to furnish security for his appearance and deposit money or other property sufficient to answer the claim. If security for appearance is furnished, and accepted, then a further direction to deposit money or other property sufficient to answer the claims seems to be not warranted. If the conditions laid down by clauses (a) and (b) of Rule 1 are satisfied, then the court can exercise its power for securing the appearance of the defendant during the pendency of the suit which is the main object of the provision. The general rule is that plaintiff must first obtain a decree and then execute the same. The question of arrest of the debtor or the attachment of property would arise at the stage of execution of the decree. However, under special circumstances which are Specified in Rules 1 and 5 of Order 38 C.P.C. the creditor can take out arrest or attachment against his debtor even before the judgment. The provisions are not obviously meant to enable the creditor to secure easy execution of his decree.

The property of the appellant had already been attached before judgment No doubt, the court in its discretion, can order arrest as also as attachment of property simultaneously subject to the provisions in Order 38. But, that should not be as a matter of course and without regard to the relevant facts and circumstances. Practical wisdom must resonate the decision which should not suffer from excessive legalism or arbitrariness resulting in injustice. In my view, the court having accepted the bond of the appellant''s brother who had undertaken to ensure his presence in court, ought not to have directed deposit of half the amount claimed in the suit. That was unwarranted and a wrong exercise of jurisdiction. Tie direction for deposit of the amount is accordingly set aside. The C.M.A. is allowed as above.