KAMAL KUMAR VARMA Vs. BHUMIRAJ SHARMA

JUDGEMENT

(1.) AN application for attachment before judgment having been dismissed by the trial Court, the plaintiff has come up in appeal. The plaintiff has filed this suit for the recovery of money in respect of some amount advanced to defendant no 2 by way of loan in respect of which the other two defendants also undertook liability subsequently and it is alleged that defendant No. 1 who is the father of the other two defendants had undertaken not to transfer the house in question and the plaintiff could realise the amount due by sale of that property. Along with the suit, the plaintiff also applied for an order of attachment before judgment in respect of House No. 18/43, Narain Dixit Lane, Varanasi ostensibly on the ground that the defendants originally belonged to Nepal and had no business at Varanasi and they were planning to leave India for ever. It was alleged that the house in question which stood in the name of defendant no 1 was the only immovable property from which the amount for which the decree may be passed could be recovered. It is alleged that in spite of categorical assurance not to transfer the house, they propose to sell the same and already an agreement of sale has been executed by them. The purpose behind this move is to delay and defeat the plaintiff's decree in the instant case, This application was supported by an affidavit but very curiously the allegations made in the application have not been repeated on oath. Only in paragraph 15 of the affidavit, there is a mention that being Nepalis the defendants may leave India at any time with their belongings and they have entered into an agreement of sale only with the object of delaying and defeating the decree that may be passed against them.

(2.) ON this application notice were issued to the defendants and the defendants contained the same. The defendant not filed his own affidavit and refuted all the allegations made by the plaintiff and denied the various documents filed by the plaintiff in support of his contention. The Court, on a consideration of the material before it, dismissed the application by its order dated 1.1.1982.

(3.) BEFORE we proceed to touch upon the merits of the case, we may point out that the trial Court would have been well advised to look into the various provisions of the Code in respect of its right to order attachment of the property before judgment. It is always a prudent policy that the Court should have the provision before it under which it purports to act and exercise jurisdiction. It is not uncommon these days to find that the Courts do not devote enough attention to this aspect and the result is that in most cases they go astray and the real controversy in the suit gets ignored.