CHAMPALAL Vs. PYARIBAI

JUDGEMENT

(1.) THIS is an application by the defendant in a money suit based on two pro -notes which have been admitted, from the order of the Civil Judge affirming the interim attachment before judgment under Order 38 rule 5 Civil Procedure Code. The suit itself had been filed in 1953 and seems to have reached the stage at which the judgment is to be delivered, which would have been delivered, but for the fact that the record has been sent for in course of this miscellaneous appeal. The questions for decision are, firstly, whether it is merely a case of the plaintiff's bare apprehension that the defendant is going to dispose of his properties with the purpose of frustrating the execution of the decree that the plaintiff might obtain; secondly, whatever the finding on merits of the intention to dispose of the property and the purpose of frustrating the decree, the plaintiff might obtain, whether the attachment before judgment was justified in view of the undertaking the defendant had given when he borrowed the money: -

(2.) THE facts of the case are simple and at this stage practically common ground. As long ago as 1956 the defendant borrowed money by three pro notes from the plaintiff, out of which, the debt on two of the pro -notes is still outstanding. At that time, he executed another agreement stating that so long as the money was not repaid, he would not transfer any of his immovable properties and if he did, the plaintiff could take steps to stop him from doing so. What exactly would be the legal shape in which the plaintiff could, if at all, enforce the agreement is a question with which we are not directly concerned here. But it shows the intention of both the parties that all the immovable properties of the defendants should be available to the plaintiff if it became necessary for him to realise the debt by process in a law court. Any way, the matter went on with some acknowledgements and satisfaction of one of the pro -notes, till ultimately the suit was filed in 1953 for Rs. 7209, and interest on the two pro -notes. Immediately before the filing of the suit, the defendant had actually sold out three out of the seven houses, which was all the immovable property that he had. He states that he applied the money for the satisfaction of one of the pro -notes; but there is no evidence that the entirety was so applied and in any event, this was without the knowledge and permission of the plaintiff creditor. Simultaneously with the plain, the plaintiff prayed that the four remaining houses of the defendant might be attached under Order 38 rule 5, because the defendant was trying to dispose them of with a view to frustrating the execution of the decree that the plaintiff might obtain in the suit, and he had no other property from which he could satisfy the decree, and these inspite of his earlier agreement. There was an ad interim attachment, but after notice to show cause, the attachment was made final. During the show cause proceedings, the trial Court had expressly invited the defendant to give security for the claim in the suit which is only a fraction of what he asserts is the value of the houses. He declaimed to do so.

(3.) ON behalf of the defendant -appellant, case law has been cited, viz., the rulings reported in Promraj Vs. Mohommad Manock Gazi A.I.R. 1951 Cal 156, Dr. B. R. Choudhary Vs. P. V. Bhagwat, A.I.R. 1953 MP 247; Gagrat and Co. Vs. Ismail, 1957 JIJ 234. The first case is of particular interest because it sets out, as it were, a list of 14 principles for the guidance of the Court in applying Order 38 Rule 5. In all cases, the general principle is that this provision should be invoked only exceptionally Further, it is not the mere apprehension of the plaintiff even a justifiable apprehension that the defendant might dispose of his property and thereby make it difficult or even impossible for him to execute the decree if and when it is obtained, that would call for an order under this provision; but there should be on the part of the defendant an attempt to dispose of his property -either the entirety or a substantial portion and not merely microscopic or insignificant part. Further, such disposal or attempted disposal should be with a view to frustrate or obstruct the execution of the decree that might be passed in favour of the plaintiff. In view of the extreme difficulty, decreeholders experience in our country in realizing the fruits of litigation, it might be better that the attachment before judgment had not been hedged in with so many conditions; but one has to apply the law as it stands and as it has been interpreted by the High Courts of this Country. The provision is exceptional and one has to establish a course of conduct on the part of the defendant realised in part and likely to be realised in another part; It has also to be established that this course of conduct is motivated by a desire to prevent the decreeholder or at least to obstruct him from realising the money by executing the decree if and when passed in his favour. However difficult this might make things to the plaintiff, this is the law as interpreted by the Courts and has to be applied as such.