OM PARKASH BANSAL Vs. CANARA BANK

JUDGEMENT

(1.) THIS revision is directed against order dated May 5, 1993 passed by Additional Senior Subordinate Judge, Nabha, dismissing the petitioner's application under Order 38 Rule 5 of the Code of Civil Procedure.

(2.) BRIEF Facts of the case are that the Canara Bank instituted the suit for the recovery of Rs. 7,57,560/ - against respondent 1 to 9 as the principal debtors and the petitioner, who was arrayed as defendant No. 10 in the suit, as guarantor. During the pendency of the suit, the guarantor defendant no. 10 made an application under Order 38 Rule 5 for attachment of the property of defendant No. 8, one of the principal debtors. The property referred to by the applicants was a share of defendant No. 8 in two theaters, one situated in Bathinda and the other at Malout. Alongwith the application, applicant filed his affidavit. The application was opposed and by the impugned order, the same was dismissed. Hence this revision petition.

(3.) MR . H.S. Bhullar, Learned Counsel for respondent No. 9 stated that he does not dispute the proposition that an application by a defendant against a co -defendant under Order 38 R. 5 of the Code of the Civil Procedure was maintainable, but his main contention is that attachment before judgment is, in the nature of things, an extraordinary remedy and it was the duty of the applicant seeking attachment before judgment to make out a convincing case for such an order. In the instant case he submitted that except repeating the words of the Order 38 Rule 5, the applicant has failed to give any definite facts or place on record any material to satisfy the court that respondent No. 9 was about to dispose of the whole or any part of his property or he was about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court within the meaning of Rule 5 Order 38. Mr. Bhullar highlighted the fact that the property referred to in the application was already situated at Bathinda and Malout i.e. outside the territorial jurisdiction of Nabha and there was thus no question sub -clause (b) of sub -rule (1) of Rule 5 of Order 38 being attracted to this case. He placed reliance on Bank of India v. National Tile Work Industries and Ors. and UCO Bank, Madras v. Sukra Shoe Fabric and Ors. .