BASAPPA Vs. NANJAMMA

JUDGEMENT

(1.) This is an application under Order 38, Rule 5, read with Sections 107 and 151, Criminal P. C., for attachment before judgment of the properties described in the schedule, on the ground that the respondent defendant is about to dispose of the properties and that her doing so will leave the plaintiff-appellant without any adequate means of recovering the decree amount in case he obtains a decree in this Court. An affidavit has been filed by the applicant and in the first portion of it he sets out under what circumstances he had got the properties attached in the lower Court. The suit was later dismissed and the order of attachment of that Court has come to an end.

(2.) The point for consideration is whether there is now any reason for attaching before judgment the properties of the defendant. As stated in Order 38, Rule 5, the Court must be satisfied by affidavit dr otherwise, first, that the defendant is about to dispose of the whole or any part of his property or that he is about to remove the whole or any part of the property from the local limits of the jurisdiction of the Court, and secondly that his doing so is with intent to obstruct or delay the execution of any decree that may be passed against him. In the affidavit the plaintiff, appellant states, no doubt, that the respondent-defendant has been making preparations to sell away the properties. He has also stated that if the defendant does so, it will make it impossible for him (plaintiff-appellant) to recover any portion of the decree. Assuming what is stated in the petition is true, it is clear that it is nowhere stated that the intention of the defendant-respondent in selling away the property is to obstruct or delay the execution of any decree that may be passed against her. It is one thing to say that the selling away of the property would result in the obstruction or delay of the execution proceedings, and it is another thing to say that that result was intended. What is required under Rule 5 of Order 38 is that the disposal of the property should be with the intention of obstructing or delaying the execution of any decree that may be passed against the defendant. Since there is no such allegation in the affidavit, it is clear that, even if what is stated in the affidavit is true, it cannot be said that the Court has material to feel satisfied that the requirements of the section for attaching the properties before judgment are fulfilled.

(3.) The next point that has to be noticed is that a mere vague statement in an affidavit that the defendant is about to dispose of the property is not sufficient. Pull particulars as to what made the plaintiff think that the defendant is about to dispose of his properties and how the plaintiff-appellant came to know of them must be furnished. It is not uncommon for the lower Courts to attach immovable properties before judgment as a matter of course. This is not correct. Eeferring to the decisions of the Patna High Court, it has been observed in 13 Mys. L. 3. 143 as follows: