LAXMIDHAR BEHERA Vs. BANSIDHAR KHATEI

JUDGEMENT

(1.) This appeal is directed against the order dated 31-10-1981 passed by the Subordinate Judge, Second Court, in Miscellaneous Case No. 108 of 1980 refusing attachment before judgment under O.38, R.5 of Civil Procedure Code. The facts leading to the prayer for attachment before judgment as stated by the appellant are as follows : -

(2.) The suit (Title Suit No. 262 of 1978) in which the prayer for attachment before judgment was made was filed by the appellant-plaintiff for dissolution of partnership and settlement of accounts of the firm "M/s. Radhakrishna Enterprise" of which defendants 2 to 4 are partners. The said partnership is alleged to have been constituted to provide funds and to execute various contract works taken in the names of the individual partners. Defendant 3 was the Managing Partner, who was authorised by the terms of the partnership and by other contemporaneous documents to withdraw money from the Government departments receivable in respect of those contracts and he was also authorised to operate the bank account standing in the name of defendant 2 and in the name of the firm. It was alleged in the plaint that certain contract works were taken in the names of defendant 2 and was financed and executed by the partnership firm. The plaintiffs case is that according to the terms agreed to between the parties, the benefits arising out of the said contract works should accrue to the partnership firm and not to any individual partner or to defendant 2 in whose name the work was taken. The aforesaid arrangement amongst the partners is said to have been accepted by the Government. Some disputes arose as to the finalisation of the claims arising out of the aforesaid contract works taken in the name of defendant 2 and executed by the partnership firm and the same was referred to arbitration. Awards for Rs. 2,27,458/- were passed by the Arbitrator in favour of defendant 2, who is a person in whose name the contract work was taken though the plaintiff claims the said amount as one of the assets of the partnership firm. A prayer was accordingly made in the suit for a declaration that the awards passed in those arbitration cases are due to the partnership firm and not to defendant 2 individually. The plaintiff-appellant filed a petition under O.39, R.1, C.P.C. for restraining the present respondent-defendant 2 and defendant 3 from receiving any money under the awards and directing defendant 5 to deposit the said amount in court. On 8-9-1978 the Court passed an order directing the parties to maintain the status quo till 12-9-1978. On 12-9-78 the status quo order was continued until further orders. Later on the court after hearing the parties vacated the status quo order on 29-11-78. Immediately thereafter defendant 2, in whose name the award stood, withdrew the awarded amount in order to deprive the partnership firm. The plaintiff thereafter filed an application under O.38, R.5, C.P.C. for attachment of the money payable to the firm-defendant 1 in respect of works mentioned in Schedule 'B' appended to the said application alleging that defendant 2 is about to leave the jurisdiction of the court and may go to Calcutta to avoid execution of any decree that may be passed against him with the intention to defraud and delay the same. By order dated 28-3-1980 the Subordinate Judge, Cuttack after hearing both parties passed an order directing defendant 2 to furnish security to the extent of the claim amount i.e. Rs. 2,27,458,/- by 7-4-1980 failing which the attachment order would become absolute. Defendant 2 challenged the said order in C.R. No..270/80 which stood dismissed for default on 14-4-1981. Thereafter defendant 2 filed a petition for restoration and the civil revision was restored. The said civil revision was again dismissed for default on 4-8-81 and a restoration petition was again filed (M.J.C. No. 92/81) which was withdrawn on 20-11-81. In Civil Revision No. 270/80 a consent order was passed on 12-12-80, restraining defendant 2 from making any further collection out of the works described in details in Schedule 'B' until further orders. Since the Civil Revision was dismissed for default and the restoration application was withdrawn, the aforesaid interim order passed by this Court in Civil Revision No. 270/80 lapsed and it is alleged that by taking advantage of the position, defendant 2 made attempts to withdraw a sum of Rs. 47,181/., the same being the award passed in respect of the work described in Item No. 1 of attachment prior to judgment to the respective Executive Engineers in pursuance of the order of the said court dt. 28-3-80 as no security was furnished by defendant 2 as directed. The court thereafter heard both the parties and passed the impugned order dismissing the prayer for an order of attachment before judgment on the ground that the items in Schedule 'B' are neither property nor actionable claim which can be attached. The learned court held that the same are merely disputes which have been raised and are pending before the arbitrators for decision. Learned Counsel appearing for the appellant has urged in this appeal that the order of the Subordinate Judge refusing to attach the properties described in Schedule 'B' of the petition is based on misconception of law as the same are "properties" or "actionable claims'' within the meaning of O.38, R.5, C.P.C. and are, therefore, attachable.

(3.) Out of the five items described in Schedule 'B', item 2 relates to the work "Nimapara Branch Canal Construction of ODR bridge over Nimapara Branch Canal at RD 1 11M 3499'' and the learned counsel for both parties submit that the award in respect of the said item has already been passed by the Arbitrator and the amount has been already withdrawn by the managing partner of the firm in accordance with the order dt. 18-12-85 passed in Misc.Appeal No. 90/82. Therefore, the prayer for attachment of this item was not pressed. Similarly the prayer for attachment before judgment in respect of item 5 was not pressed as the amount awarded has already been withdrawn by defendant 2. The only items in respect of which the prayer for attachment before judgment is made in this appeal are items Nos.1, 3 and 4 of Schedule 'B' appended to the petition under O.38, R.5, C.P.C.