JEEVAN LAL Vs. CENTRAL BANK OF INDIA

JUDGEMENT

(1.) THIS is an appeal from an order passed by the District Judge of Shivpuri under Section 433, Gwalior Code of Civil Procedure, Samvat 1966 directing the attachment before judgment of certain properties of the, Appellant. On 30 -1 -45 the Respondent Central Bank of India Ltd. instituted a suit against the Appellant in the Court of District Judge, Shivpuri for the recovery of Rs. 17,407 -6 -6. On the same date the Plaintiff Bank put in an application under Section 433, Gwalior Code of Civil Procedure, stating that the goods on the security of which the Plaintiff had advanced certain monies to the Defendant and which the Plaintiff was seeking to recover in the suit, had been attached by the District Co -operative Bank of Shivpuri and that, therefore, the security given to the Plaintiff had become insufficient. Further that the Plaintiff had learned that the Defendant was thinking of selling his property and leaving the State territory. On these grounds the Plaintiff prayed that an order of attachment before judgment be granted of a house of the Defendant. The attachment was effected on 2 -2 -45. On the next day the Defendant -Appellant presented an application objecting to the attachment and praying to the Court that the attachment be set aside and he be awarded compensation in the sum of Rs. 1000 for the wrongful attachment. The learned District Judge, therefore, heard both the parties, recorded their evidence and confirmed the order of attachment before judgment.

(2.) IN this appeal, Mr. Shiv Dayal for the Appellant, contends that the order of attachment passed by the learned District Judge was not legal, because the Plaintiff had not stated in his application under Section 433, Gwalior Code of Civil Procedure whether the Defendant was about to dispose of any part of his property or about to leave the local limits of the jurisdiction of the Court with the intention of obstructing or delaying the execution of any decree that might be, passed against him. It was said that on the evidence led by, the Plaintiff, it is not established that the Defendant was going to make alienations of his property after the filing of the suit, with intent to delay or obstruct the execution. Learned Counsel for the Appellant further said that as the Plaintiff had applied for an order of attachment on insufficient grounds, the Appellant was entitled to compensation.

(3.) AS to the contention of the Appellant that he is entitled to compensation for this wrongful attachment, I think it must be rejected. It is quite true that the Plaintiff did not state in his application for attachment before judgment the intent with which the Defendant contemplated to leave Shivpuri or dispose of his property. But for awarding compensation whether under Section 439, Gwalior Code of Civil Procedure, or under Section 95, Code of Civil Procedure, 1908, the question to be decided is whether there were in fact no sufficient grounds for applying for attachment before judgment and not whether there were no sufficient grounds stated in the application. The words 'insufficient grounds' mean without reasonable or probable cause. See 'Roulet v. Fetterle' 18 Bom 717 at p. 720. Now it has been found here that the goods pledged with the Plaintiff were attached by the District k Co -operative Bank; that the Defendant had left Shivpuri and that he had told Mr. Khanna, the Manager of the Plaintiff Bank, that in case he was allowed bail he would return to Shivpuri I, and would dispose of his property. From these facts, it is clear that the Bank had reason to suspect that the Defendant intended to dispose (SIC) property with a view to delay or obstruct the execution of the decree that the Bank might obtain against him. The Plaintiff Bank, however, did not succeed at the hearing in establishing this intention of the Appellant. But (SIC) in itself does not entitle the Appellant to claim compensation from the Plaintiff. The Appellant must show that the Plaintiff was unjustified in suggesting to the Court on 30 -1 -45 when he procured the order of attachment that he was about to defeat the object of the suit in making alienations or by leaving Shivpuri.