SUBODH KUMAR DEY Vs. ASHALATA BHAGAT

JUDGEMENT

(1.) DIRECTION given by the learned First Subordinate Judge. Cuttack, for furnishing security by the petitioner, and on failure for attachment of property described in the Schedule is tinder challenge in this appeal.

(2.) DURING pendency of a suit (M. S. No. 11 of 1992) before the learned First Subordinate Judge, Cuttack, an application under Order 38, Rule 5 of the Code of Civil Procedure, 1908 (in short, the 'Code') was filed by the plaintiff for attachment of properties mentioned in the schedule belonging to the defendant before judgment. The case of the plaintiff is that she has filed the original suit, out of which the misc. case arose, against the defendant for recovery of Rs. 93,241.93 paise which was advanced by her for purchase of the properties described in Schedule A of the suit. Defendant by mis -representation and by practising fraud, induced her to purchase the properties, and received amounts on different dates from her after granting receipts. She came to know that the defendant is not the sole owner of the properties, and he had no legal right to sell the same, and therefore, she asked for refund of the entire amount taken by the defendant. But the defendant did not return the amount, and therefore, she was compelled to file the suit. The defendant having come to now of filing of the suit, in order to delay and with the intent to obstruct execution of the decree that may be passed against him, is trying to dispose of his only immovable property situated in Cuttack town and to leave the jurisdiction of the Court to permanently stay at Calcutta. With the mala fide intention, he has also negotiated with one Chaitanya Prasad Bhagat to arrange customers for purchase of his half share in the scheduled property if the defendant sells away his only scheduled property, she would suffer irreparable loss and the decree that would be passed in her favour would become infructuous and she will not be in a position to recover the decretal dues from the defendant, and she will not be able to get the fruits of the decree that may be passed against the defendant and in her favour.

(3.) THE learned Subordinate Judge on consideration of the rival submissions found that the plaintiff has filed the suit for recovery of more than Rs. 90,000/ - which was advanced by her to defendant on different dates being advance consideration for specific performance of contract for sale in respect of properties described in Schedule A as appended to the suit, and therefore, she demanded return of the amount. The property in question was the only immovable property belonging to the defendant and his brother each having half share. He took note of the allegation that the defendant was trying to leave jurisdiction of the Court to settle at Calcutta. Reliance was placed on the affidavit of Shri Chaitan Prasad Bhagat wherein it is stated that the defendant had approached him to arrange purchasers for sale and he has contacted many persons and one Peary Mohan Mohapatra had negotiated for purchase of the property in question. It was noticed that no objection was filed by the defendant to rebut the assertions made by Chaitan Prasad Bhagat, and Peary Mohan Mohapatra. The property was the only Property of the defendant. Considering these aspects the learned Subordinate Judge directed the defendant to furnish cash or property security to the extent of Rs. 1 lakh. It was stipulated that in case of failure to furnish the security, the scheduled property was to be attached under Order 33, Rule 5, of the Code.