V G QUENIM Vs. BANDEKAR BROTHERS PVT LTD

JUDGEMENT

(1.) THIS common Judgment disposes of the Appeals from order No. 57/ 2001, 58/2001, 59/2001, 60/2001 and 61/ 2001. Aforesaid appeals from Order arise from the common Order of the Civil Judge, senior Division, Bicholim, Goa dated 5th September, 2001, passed in four Special Civil Suits bearing nos. 7/2000/a, 8/2000/a, 14/ 2000/a and 21/2000/a, The said common Order passed in the aforesaid four suits is uncommon in the sense that by the Order, the Court has directed attachment before judgment/adjudication of the claims which are the subject-matter of the said suits, the remedy of attachment before Judgment being an uncommon feature in litigation and granted only in exceptional circumstances calling for such drastic action taken in order to safeguard the interests of the plaintiffs. The Orissa High Court in Tatanagar transport Corporation and ors. vs. M/s. Ajanta enterprises and Anr. ,air 1987 Ori. 107 has, while observing as aforesaid, held that the first legislative guideline is that the intention of the defendant must be to obstruct or delay the execution of any decree. Where the effect of some circumstances would lead to delay in execution of a decree or obstruction to it without the intention for the same the power is not available to be exercised. Therefore, the actions of the defendant are to be of voluntary nature from which legitimate inference of the intention to obstruct or delay the execution can be drawn. The second legislative guideline is that with the said intention the defendant is about to dispose or remove from the jurisdiction of the Court whole or part of his property. Thus, both the pre-conditions must be satisfied for the purpose of exercise of the power under Order 38 Rule 5 of the Code of Civil Procedure.

(2.) IN addition, to the above order for attachment before judgment in the aforesaid suits, in Special Civil Suit No. 7/ 2000/a in Civil Miscellaneous application No. 50/2000/a, temporary injunction has been issued restraining the appellants/defendants from parting with the possession or transferring the mining machinery stated in the operative part approximately to be of the value of rs. 35 lakhs, as well as the residential bungalow of the defendants and the share of the defendants M/s. Vilman Packaging Pvt. Ltd.

(3.) IT is the contention of the appellants that besides granting temporary injunction the trial Court has also granted conditional attachment of the property and such conditional attachment is unnecessary since a temporary injunction has been granted as aforesaid. In fact, it may here be pointed out that at the time of admission of these Appeals From Order the learned advocate for the appellants was agreeable to the admission of the said Appeals From Order and also agreeable to the temporary injunction restraining the appellants from parting with possession as aforesaid, but insisted that the conditional attachment should be vacated. This offer was not acceptable to the respondents/plaintiffs and, therefore, by consent, the matter now taken for final hearing and disposal. The Appeals From Order were thereupon heard at length. Parties were directed to file written submissions which they have done.