BABULAL DLICHAND JAIN Vs. KAMALADEVI

JUDGEMENT

(1.) this is a revision from the order of civil judge gadag, dated 16-8-1995, on an application under order 38, Rule 5 read with Section 94(b) and Section 151 of Code of Civil Procedure moved in os No. 24 of 1995, for attachment of the lands bearing revenue survey nos. 88/1 and 88/2 situate at tegginabhavanur village in shirhatti taluk, dharwad district.

(2.) i have heard the learned counsel for the petitioner sriananth k. Navalgimath and Sri rayareddy assisted by miss. Vijayalakshmi patil. Learned counsel for the petitioner Sri navalgimath submitted that the order of attachment is illegal and without jurisdiction as it has been passed without complying with the requirements of sub-rule (1) of Rule 5 of order 38 of Code of Civil Procedure. In support of his contention, learned counsel for the petitioner placed reliance on the decision of this court in the case of Palghar Rolling Mills Private Limited v Visweswaraiah Iron and Steel, Limited . Sri Navalgimath further submitted that, court has misapplied the basic principles of law while exercising its jurisdiction. The learned counsel submitted that the court has observed this order that because the defendant has denied his liability to the claim made in the plaint, so there was a fit and proper case made out for attachment before the decree. The learned counsel submitted this approach of the court is really illegal and tainted by illegality as it means that no person in such cases is entitled to deny the claim made against him and no person is entitled to contest the claim made against him. The court appears to observe as if the defendant has to admit the claim of the plaintiff and if he does not admit, then it should be taken that the power under order 38, Rule 5 should be exercised. Learned counsel lastly submitted that, he had filed the objections to the application of attachment before judgment as well as to his being called for furnishing security and in that objection he has also denied the allegation that defendant was going to alienate or remove his property. But, that has not been considered. Instead the court without applying its mind to the affidavit without holding that allegation was incorrect simply passed a telegraphic and mechanical order saying that, I have considered the objections and there are no merits. But it has not applied to it what objections have been taken by the defendants in their memo of objection. Learned counsel submitted that, as such the order of attachment before judgment is per se illegal and without jurisdiction as the power to attach or to issue direction under order 38, Rule 5 is subject to conditions which are sin qua non namely the satisfaction of the court that the defendant with intent to obstruct or to delay of execution of decree that may be passed against him is about to dispose of whole or any part of his property or to remove his whole or any part of the property from the local limits of the jurisdiction of the court. No such specific finding has been recorded by the court in this order.

(3.) on behalf of the opposite parties Sri rayareddy contended that, earlier a conditional order of attachment was passed, that order is not under challenge. Nodoubt Sri rayareddy very fairly submitted that, so far when the court observed that considered objection, no merits but as there is nothing mentioned in the order about the contents of the objection it may be argued that, court has not applied its mind to the objections itself. Sri rayareddy further very fairly submitted that, the satisfaction of the court to the effect that the defendant is about to dispose of the property whole or in part or to remove his property whole or in part with the object to frustrate or to delay the execution of the decree is condition precedent to the passing of order under order 38 of the code as such as well finding thereon was needed to be recorded. But, as the conditional order has not been challenged, so, there is no need to go into this question. In the end, Sri rayareddy submitted that if the court is satisfied that there is any illegality in exercising jurisdiction, it is better while disposing of the revision that the subordinate court may be directed to consider the application afresh.