MANOHAR SINGH Vs. HIND KUMAR KOHLI

JUDGEMENT

(1.) THIS is an appeal by the non-applicants Nos. 2 to 4 under O. 43, R. 1, Civil Procedure Code, against an order dated 28-6-1988, passed in Misc. Civil Case No. 52/1987, by Fifth Additional Judge to the Court of District Judge, Gwalior, whereby the Trial Court under O. 38, R. 5, CPC, directed the non-applicants Nos. 2 to 5 (appellants and respondent No. 5 herein) to furnish security for Rs. 2,00,000/- promising to pay the amount up to this extent jointly and severally to Jagdishchandra, non-applicant No. 1/respondent No. 4, in case the award is made the rule of the Court and to satisfy the decree which may ultimately be passed against them, within fifteen days from 28-6-1988, failing which a warrant of attachment of the two properties as mentioned in para 11 of non-applicant No. 1/respondent No. 4's application dated 4-5-1987 was ordered to be issued.

(2.) THE facts leading to this appeal are that the appellants and one Pravin Kaur, respondent No. 5, and Jagdishchandra, respondent No. 4, were carrying on business in partnership in the name and style of firm Moharsingh Manoharsingh. Differences and disputes arose between the partners about the business and accounts, hence, they entered into an agreement on 29-11-1986 for resolving their disputes by arbitration. THE arbitrators so appointed by the agreement, after proceeding with the arbitration, gave an award on 24-12-1986, of which a notice was given to the parties, on 25-3-1987 an application under S. 14(2) of the Arbitration Act (for short, the 'Act') was filed by respondents Nos. 1 to 3 to make the award as the rule of the Court. After notice appellants Jagdishchandra, respondent No. 4, and Pravin Kaur, respondent No. 5, preferred their several and various objections to the application and to the making the award as rule of the Court. On 4-5-1987 respondent No. 4 preferred an application under O. 38 R. 5, CPC, O. 39, Rr. 1 and 2 read with S. 94 and S. 141, CPC, making various allegations against the appellants and averring therein that an amount of Rs. 2,25,000/- is to be realised from non-applicants Nos. 2 to 5, but with an intent to obstruct or delay the execution of the decree, which may ultimately be passed against the appellants and Pravin Kaur, respondent No. 5 they have changed the name of the firm Moharsingh Manohar Singh and have started business in the name and style of Ravindra Singh and Company, whereby misusing and misappropriating all the assets of the firm of which the dispute arose between the Partners. It was alleged that all the properties of the said firm will be damaged, alienated or transferred, so that the respondent No. 4/non-applicant No. 1, in whose favour the award is passed, will not be able to get satisfaction of the decree which may ultimately be passed in terms of the award. It was also alleged that non-applicants Nos. 2 to 5 intending to dispose of the two houses to defeat the claim of respondent No. 4. It was also alleged that the non-applicants Nos. 2 to 5 have started carrying on business in Punjab and for that they have transferred their assets to Sarhad in Patiala District, if the properties are not attached and/or a receiver is not appointed and/or the temporary injunction is not granted, respondent No. 4 will not be able to execute and realise the decretal amount.

(3.) THE Trial Court by the impugned order, instead of granting temporary injunction, or appointing receiver, passed the order under O. 38 R. 5, CPC, as aforesaid.