PONNALURI RANGANAYAKAMMA DIED Vs. PARIGUIURU KODANDARAMA SARMA

JUDGEMENT

(1.) THE appellant is the defendant. THE respondent laid action in the suit for specific performance of the agreement dated November 4, 1978. Pending trial, he also filed I. A.No.594/1979 under Order 38, Rules 1 to 5 of the Code of Civil Procedure for attachment befroe judgment of the schedule mentioned property viz., the subject matter of the contract and another house. THE Court below passed the order against which, the present appeal has been filed.THE allegation made in support of the petition is that the appellant Is trying to alienate the property the subject of the contract and another property. THE said allegation has been denied by the respondent. THE contention of the appellant is that the suit being one for specific performance, the application under Order 38, Rule 5 does not lie. Even otherwise, there is adequate security under the Court. It is resisted by the respondent contending that in the event of the alienation being made, the third party's rights would be emerged and therefore it is a case for attachment before judgment and the Court below rightly passed the order. THE question is, whether the order is legal?

(2.) THE object of attachment betore judgment, under Or.38, R.5 of CPC., is that in a suit which if ultimately decreed, whether the plaintiff could successfully execute the decree. In that process, with a view to prevent the attempt of the defendant to alienate his property or to keep the property out of the reach of the Court so as to delay or defeat the execution of the decree that may ultimately be passed, an order attachment before judgment, could be passed. But before making such an order, the Court has to satisfy on the basis of affidavit evidence or otherwise that the defendant, with intent to obstruct or delay the execution of the decree that may be passed against him, is about to dispose of the whole or part of the property or about to remove any of the property from the local limits of the jurisdiction of the Court and on such satisfaction, the Court may direct the defendant within a specified time either to furnish security in such sum as may be specified in the order or to produce and place at the disposal of the Court when required the said property or the value of the same or such portion thereof as may be sufficient to satisfy the decree. Before doing that, the Court is enjoined to issue a show cause notice why the party should not furnish the security. OR his failure to furnish such security then the Court has got power to order attachment before judgment. If he gives security as ordered, there is no need to pass such an order. THE question there fore is, whether this procedure has been complied with? No doubt, an opportunity has been given in this case. But whether, in a suit for specific performance, is it necessary to invoke the provisions of Or.38, R.5? It is axiomatic that the subject of the contract entered into between the parties would be sufficient as adequate consideration. If any attempt of alienation is made after filing of the suit, Sec. 52 of the Transfer of Property Act comes into play and such a contract is hit by the doctrine of lis pendence. THE purchaser would get no title. Even if the suit filed, in the circumstances of the case, is decreed only for refund of the earnest money, even then Sec.56 of the Transfer of Property Act creates a statutory charge for the earnest money to be recovered from the property the subject of the contract. Under either circumstances, the need to seek an attachment before judgment is redundant. THE attachment before judgment of the other property not the subject matter of the contract, could only be considered in a case where the amount to be recovered is in excess and the decree cannot be satisfied by the sale of the subject of the contract. That is a remote possibility for the simple reason that when the parties entered into contract for the purchase of the property it is on the premise that the property represents adequate consideration and therefore the attachment before judgment of the other property cannot normally, be effected. In this case, this consideration was not made by the Court below and a reading of the order would appear that by mere asking, the Court has ordered attachment before judgment. THErefore, the order is per se illegal and cannot be sustained for any moment. THE appeal is accordingly allowed with cost's and the l.A. is dismissed. Appeal allowed.