TULSIDAS KESHARLAL BLYANI Vs. KASABAI

JUDGEMENT

(1.) This is the original defendants civil revision application that questions the order made below Exhibit 23 in Special Civil Suit No. 76 of 1981. By that order, the Court below ordered that the petitioner-defendant was to furnish a solvent security to the extent of Rs. 45,000/- on or before February 21, 1984 in order to secure the respondents-plaintiffs claim in the suit, and that in case of default, his defence would stand struck off.

(2.) That order came to be made upon an application that was purported to have been filed under Order 38, Rule 1 of the Code of Civil Procedure, 1908 (hereinafter referred to as "the Code").

(3.) The respondent-Plaintiffs filed the suit on August 11, 1981 on the basis of the claim that the petitioner-defendant is liable to pay a sum of Rs. 33,903.25p. because of non-payment of five deposit receipts. That claim included the claim for interest and notice charges. Along with the plaint, an application was filed under Order 38, Rule 5 of the Code for attachment of a house. An ex parte order was made that rule directing attachment. However it is admitted that no attachment could take effect as the property was already sold. Pursuant to the summons, the petitioner-defendant appeared and filed his say as well as written statement denying the liability. He filed reply to the application for attachment, but did not disclose the fact of disposal of the property. It does appear that the house property was disposed of on August 4, 1981. Thereafter, the present application, purporting to be under Order 38, Rule 1 of the Code, was filed, praying that a warrant of arrest be issued against the petitioner-defendant under that provision. The application was resisted, but eventually, the impugned order was made.