S SELVARATHINAM Vs. RAJASEKHARAN NAIR

JUDGEMENT

(1.) Revision petitioners are the plaintiffs in a suit for specific performance and recovery of excess money received by the defendants under an agreement to sell. It was alleged that the defendants received a sum of Rs. 37,68,750/- from the first plaintiff as per an agreement that sale deeds would be executed in respect of the property of the defendants as also with regard to the property lying adjacent to the plaint schedule property. It is also alleged that the sale deeds executed by Gopakumar and Jayachandran Nair with regard to their property which were also part of the properties agreed to be sold to the plaintiffs were fake documents fraudulently created with intent to cheat the first plaintiff. The suit was therefore laid for a decree directing two sale deeds to be executed in favour of the first plaintiff with respect to the plaint schedule properties within a reasonable time to be fixed by the Court with regard to the plaint schedule properties and for recovery of Rs. 35 lakhs with 24% interest being the amount received in excess by the defendants with an alternative prayer that a decree be passed for recovery of Rs. 37,68,750/- with 24% interest per annum from the date of suit. Along with the suit an I.A. was also filed for restraining the respondents from alienating their properties to strangers or from inducting strangers therein till the disposal of the suit. I.A. 3124 of 1999 was also filed seeking arrest of the respondents before judgment in case they fail to furnish security for a sum of Rs. 49 lakhs. Based on the objection filed by the respondents to the said petition, it was dismissed with a cryptic order as follows:

(2.) The respondents on the other hand contended that the revision is not maintainable as the impugned order is not a case decided and that in any event there is no case made out for an order of arrest before judgment.

(3.) Under S.115 of the C.P.C., the revisional jurisdiction can be applied only in respect of cases which have been decided by any Court subordinate to the High Court and in which no appeal lies therefrom. In the instant case the order sought was under O.38 R.1 CPC. Under O.38 R.1 CPC where the Court is satisfied by affidavit or otherwise that the defendant with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him; has absconded or left the local limits of the jurisdiction of the Court, or has disposed of or removed from the local limits of the jurisdiction of the Court, his property or any part thereof or that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance. This provision is subject to the proviso that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs' claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court. Under sub-r.2 of O.38 CPC where the defendant fails to show such cause the court shall order him either to deposit in Court money or other property sufficient to answer the claim against him or to furnish security for his appearance at 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 fit in regard to the sum which may have been paid by the defendant under the proviso to the last preceding rule, namely R.1.