BIKAR SINGH Vs. BADRI PRASAD

JUDGEMENT

(1.) In this appeal under O.43, R.1(q) of the Code of Civil Procedure, the appellant seeks to assail the order dated 31-10-81 of the Subordinate Judge, Bhawanipatna, passed in the proceeding arising from the application filed by the respondent under O.38, R.5 read with S.151 of the Code.

(2.) The respondent filed Money Suit No. 10 of 1981 for recovery of Rs. 61,700/- from the appellant or in the alternative for attachment and delivery of possession of the truck bearing registration No. ORH 1044. The gist of the allegations in the plaint was that the aforementioned truck was taken on hire purchase basis by the appellant from one Rahas Behari Fakir Narayan on being financed by the respondent. One of the conditions stipulated in the agreement, an oral one, was that the appellant would get the endorsement of hiring in the name of the respondent and may terminate the agreement by paying the amount or by delivering the vehicle to him. He having done neither the respondent was compelled to file the suit for the reliefs noticed earlier. Along with the plaint the respondent filed the application under O.38, R.5, for attachment of the aforementioned truck before judgement and it was registered as M.J.C. No. 59 of 1981.

(3.) The appellant on being noticed on the application took the stand in his objection that the amount advanced by the respondent to him had been duly satisfied by use of the truck for the business of the respondent. It is revealed from the order sheet of the trial court that on 13-7-81 the court issued conditional order of attachment of the truck (ORH 1044) then in possession of the defendant (appellant) asking him to show cause on or before 25-7-81 as to why he should not furnish security to the extent of the suit claim. The plaintiff (respondent) was directed to take steps for issuing the order of conditional attachment. On 14-7-81 the plaintiff's prayer for sending a special peon for service of the notice on the defendant was allowed by the court. Notices were issued fixing 25-7-81 for S.R. The order dated 25-7-81 reveals that S.R. of attachment was received back with the report of the process server that the order of attachment was served on the appellant but the truck could not be attached since the same was not available. It is pertinent to mention here that by this date the defendant had appeared and sought adjournment for filing objection. On 14-8-81 the appellant filed his objection. After several adjournments the case (M.J.C. No. 59/81) was taken up on 3-10-81. In the said order the court observed that despite several adjournments taken by the defendant to show cause against the conditional order of attachment of the vehicle no objection was filed. Instead an application was filed by him requesting the court to call upon the petitioner (plaintiff) to produce documents referred to in paragraph 3 of the petition. On consideration the court made the order of attachment of the truck absolute. In view of the report of the process server that the truck had been removed outside the jurisdiction of the court, a direction was issued to the appellant to produce the truck before the court on 30-10-81. On 31-10-81 when the court took up the matter the appellant moved for adjournment on the ground of illness. The court did not accept the plea and took it as a dilatory tactics of the party to avoid producing the truck as earlier directed. The court reiterated its direction to the appellant to produce the truck and granted time till 9-11-81. This order is under challenge in this appeal.