RATNAMMA Vs. GOVINDA PILLAI

JUDGEMENT

(1.) The plaintiff in a suit for realisation of money is the revision petitioner. The revision is directed against the order dismissing a petition for attachment of property before judgment filed under Order XXXVIII R.5 of the Code of Civil Procedure.

(2.) The petitioner filed the suit to recover an amount of Rs. 82,000/- being the value of the gold ornaments which the respondent had taken from him. It was apprehended that the properties of the respondent would be alienated before the judgment and therefore the petitioner filed an application under Order XXXVIII R.5 for attachment of the property of the respondent. Initially the Trial Court passed an order of attachment on condition that the attached property can be released on furnishing security. The respondent has raised objections to the said order. The court below after hearing both sides came to the conclusion that the allegations contained in the affidavit are not sufficient enough to order attachment. The application was therefore rejected.

(3.) Under sub-rule (1) of R.5 of Order XXXVIII, the court has power to direct the defendant in a suit to furnish security as may be sufficient to satisfy the decree to be passed against him. This power can be exercised by the court only when it is satisfied by affidavit or otherwise that the defendant is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. Such disposal or removal must be with an intention to obstruct or delay the execution of any decree that may be passed against him in the suit. In the absence of such intention the court cannot direct the defendant to furnish security.