SANTOKH SINGH Vs. NARINDER KAUR AND ANOTHER

JUDGEMENT

(1.) This petition is directed against the order of the Additional District Judge, Amritsar, dated 13/6/1989 whereby the order of the trial Court restraining the defendant from disposing of the property during the pendency of the suit was maintained.

(2.) The plaintiffs have filed a suit for recovery of Rs. 2,47,140.50 p. Therein they have also made an application under Order 38 Rule 5 Code of Civil Procedure. However, the trial Court instead of passing any order under Order 38 Rule 5 itself, passed the ad interim injunction order as stated above under Order 39 Rules 1 and 2, Code of Civil Procedure, which order was maintained in appeal by the learned Additional District Judge. However, he noted this fact in appeal while observing that "no application under Order 39 Rules 1 and 2 Code of Civil Procedure, was filed but an application under Order 38, Rule 5, Code of Civil Procedure, was filed. The learned Sub Judge has granted a lesser relief to the plaintiff in this application. It is open to the trial Court to see as to whether any case is made out for the attachment of the property before judgment under Order 38, Rule 5, Code of Civil Procedure. Thus there is no merit in the present appeal." At the time of motion hearing, operation of the trial Court order dated 30-1-1989 was stayed. Later on, operation of the impugned order was stayed provided the petitioner gives a security to the extent of Rs. 2,50,000.00. It has been stated at the bar that the said security was furnished in the trial Court. That being so, this petition succeeds and the impugned orders are set aside. The said security furnished by the defendant will continue till the final disposal of the suit. Petition allowed.