DR. PRADIP KR. BISWAS Vs. SIBAJI BHOWMIK

JUDGEMENT

(1.) The defendants in Money Suit No. 5 of 2001 in the Court of learned Civil Judge (Senior Division), 3rd Court at Alipore have assailed the order dated 16th July, 2001 passed by the said Court whereby and whereunder the application filed by the plaintiff under Order 38 Rule 5 of the Code of Civil Procedure for attachment of the defendants' property before judgment was allowed upon directing attachment of Schedule 'D' property before judgment and order restraining the defendants form selling, transferring or alienating of the properties mentioned in the schedule of the plaint was passed. The learned Advocate for the petitioners Mr. Sudhis Dasgupta, Senior Counsel submits that condition precedent of applicability of such provision on the facts situation of the matter is absent. It is further submitted that in the application there was no materials as would vest jurisdiction upon the learned Court below to decide the said issue inasmuch as the paragraph 38 being the only paragraph which dealt with the conditions under the said provision is vague as sources were not disclosed and informations also were not properly made and in that view of the matter there was no material before the Court to exercise the power under the said provision of Order 38 Rule 5 of the Code of Civil Procedure. The learned Advocate for the petitioners further submits that the right to enjoy the property of the defendants has been restrained without any sufficient materials and mere filing of the suit in the nature of money suit ipso facto will not empower the Court to exercise such jurisdiction. Reliance has been placed to the judgment in the case of Premraj Mundra vs. Md. Maneck Gazi. reported in : AIR 1951 Cal. 156 and the judgment in the case of Palghar Rolling Mills Pvt. Ltd. vs. Visvesvamya Iron and Steel Ltd.. reported in, AIR 1985 Kar 282. It is further submitted that in terms of the provision of Order 38 Rule 5 of the Code of Civil Procedure, particularly under sub -rule (4). non -compliance of any of the provision under sub -rule (1) would make the attachment as void and in view of incorporation of such provision after amendment of the Civil Procedure Code in the year 1976. the Court is required to consider the aspect strictly and to pass the order upon being satisfied with all the conditions as stipulated thereto in sub -rule (1) of Order 38 Rule 5 of the Code of Civil Procedure. The learned Advocate for the opposite party herein Mr. Bikash Ranjan Bhattacharya, Senior Advocate submits that the conduct of the defendants as stated not only the plaint but also in the application with proper affidavit in connection with the application under Order 38 Rule 5 of the Code of Civil Procedure clearly created a situation before the learned Court below to exercise the power and jurisdiction under the said provision. It is contended further that since there were materials before the Court that the defendants would dispose of the property and by this process there was positive averment that the plaintiff would not be able to enjoy the fruit of the decree. The learned Court below was right in passing the order of attachment. The learned Advocate for the opposite party further submits that on the additional circumstances before the court namely. the conduct of the defendants as vividly described in the plaint and by affidavit as mentioned in the plaint, it was a fit case to exercise such power. The learned Advocate of the respondents further submits that contingency to realise the decretal amount is also a condition to be considered by the Court while adjudicating the matter and in that view of the matter the order impugned is justified. Reliance has been made to paragraphs 5 and 8 of the judgment in the case of Premraj Mundra vs. Md. Maneck Gazi. reported in : AIR 1951 Cal. 156, and also relevant object and purpose of the provision in the statue. The judgment in the case of Sardar Govindrao Mehdik. reported in : AIR 1982 SC 989. has also been relied. It is further submitted by the learned Advocate for the opposite party herein that there was no necessity of making any submission in the application in verbatim to the language used in the statute namely the intention to obstruct and delay the execution of the decree, but mere submission that the plaintiff would have no alternative to realise his dues under the decree would be the sufficient averments to appreciate the intention of the defendants. It is further submitted that in paragraphs 37 and 38 of the application such materials were placed before the Court by affidavit and accordingly the order was justified. It is further submitted that in the event this Court considers that the impugned order as passed was not legal and justified, opportunities to be further given by directing the defendants to file objection of this application so that after hearing the parties the learned Court below may pass such an order. Considering the rival contentions of the parties to adjudicate this matter, relevant statutory provision to the looked into. Order 38 Rule 5 reads thus :

(2.) In another case value and effect of the affidavit as well admissibility as evidence also has been considered namely in A.K.K. Nambiar vs. Union of India & Anr., reported in : AIR 1970 S.C 652, a judgment of the Constitution Bench, in the following language in para 11 :

(3.) In this case the value of the affidavit and the jurisdiction of the Court to pass any order on the basis of such an affidavit was considered holding that genuineness and authenticity of the allegation without any proper verification in the affidavit would make an application infructuous even if an application was well drafted and the affidavit thereto would be of without any value whatsoever. Relying upon the said judgment the Division Bench of this court also passed the same view in the case of Lee Yound Sung & Anr. vs. Board of Trustees for the Port of Calcutta. reported in, 1998 (1) CHN 63. Hence the affidavit has a special value and significance on that issue in question. From the application as was filed by the affidavit by the plaintiff before the learned court below it appears that paragraph 38 which is the only paragraph incorporation one of the elements namely, that the defendants had proposed to sell the properties was affirmed as true to knowledge but in paragraph 38 the contention is as follows: