SOHANRAJ GANESHMAL SHAH Vs. GULABRAO B KATE

JUDGEMENT

(1.) THIS is an appeal on behalf of the original plaintiff from the order dated October 22, 1970, dismissing the plaintiff's application for attachment before judgment and directing that the surety Namdeo Laxman Bibave was not liable for payment of the amount due to the plaintiff under the surety bond dated July 25, 1969, and that the surety stood discharged.

(2.) MR. Abhyankar for the plaintiff has contended that the learned Judge erred in thinking that the application Ex. 4 for an order of attachment before judgment had not been already disposed of completely by the prior order dated July 24, 1969, and by the execution of the surety bond dated July 25, 1969, in pursuance of the above prior order dated July 24, 1969. The impugned order has been made on the wrong footing that the application Ex. 4 for order of attachment before judgment had still remained outstanding for disposal. The order is entirely misconceived and not sustainable. Mr. Shinde for the surety Namdeo Laxman Bibave has denied these contentions made by Mr. Abhyankar. He has submitted that the application Ex. 4 had remained outstanding to be disposed of and the finding in the impugned order that the defendant had not disposed of any of his properties to defraud his creditors is correct. The application for attachment before judgment has accordingly been rightly dismissed.

(3.) IN connection with these rival contentions, the following are relevant facts :-On or about July 17, 1969, the plaintiff instituted the present suit for recovering Rs. 10,165/-, interest and costs from the defendant. By application Ex. 4 filed on June 17, 1969, the plaintiff applied for attachment before judgment on the ground that the defendant was not the owner of any immovable property situated within the jurisdiction of the Court and the defendant was involved in heavy debts. The defendant had with ulterior and fraudulent intention to deceive his creditors sold away his Fiat motor - car and transferred a truck of his ownership in the name of a third party. The defendant owned the motor truck bearing No. BYL 5937, though he had purchased it in the name of his wife. The plaintiff applied for an order of attachment before judgment in respect of the above truck. On that application, an ex parte order for attachment before judgment was issued on June 20, 1969. The order directed attachment but stated : "if the defendant gives solvent security of Rs. 12,000/-, the attachment shall not be made. Notice; pay emergent process". It is clear that the warrant of attachment containing the above directions attaching the above truck was duly effected. The defendant thereupon filed his say by the affidavit dated July 24, 1969, Ex. 13. By this affidavit, the defendant denied the various allegations made by the plaintiff in the application Ex. 4 but he stated that without prejudice to these denials he was prepared to give an undertaking not to sell or dispose of any of his properties pending the hearing. His wife would also give such an undertaking. He, therefore, applied for raising of the attachment and delivery and/or return of the truck free of attachment. Upon the filing of this affidavit Ex. 13, the trial Court heard the pleaders of the parties and directed that the truck be released from attachment "if the defendant gives solvent security for Rs. 12,000/-". This order was made on July 24, 1969 and the submission of Mr. Abhyankar has been that this is the final order whereby the plaintiff's application Ex. 4 for attachment before judgment was completely disposed of. The effect of the order was that attachment of the truck was confirmed subject, however to the option given to the defendant to get the attachment raised upon furnishing solvent security for Rupees 12,000/ -. The defendant accepted the correctness of the above order as appears from the Nazir's report and the surety bond dated July 25, 1969. The Nazir reported that the defendant had produced surety of Rs. 12,000/ -. The surety had agreed to produce solvency certificate. The attachment on the truck stood raised. I have no doubt that the truck was released from attachment upon execution of the surety bond by the present respondent.