RAJINDER SINGH Vs. MAHENDER SINGH

JUDGEMENT

(1.) This revision is directed against the order of the learned Civil Judge, Junior Division, Hisar, dated 6.11.1997. Vide this impugned order, the learned Judge dismissed the application filed by the applicant-plaintiff under Order 38 Rule 5 C.P.C. but still directed the defendants in the suit to furnish security to the sum of Rs. 2 lac. Aggrieved from this judgment of the Court the defendants have filed the present revision petition.

(2.) The provisions of Order 38 Rule 5 of C.P.C. are stringent provisions and Can be taken recourse to once the basic ingredients specified under these provisions are satisfied and the Court is prima facie of the view that the decree of the Court is likely to be frustrated or unnecessary delay. The learned trial Court in the impugned order held as under:-

(3.) I have also perused the application under Order 38 Rule 5 of the Code of Civil Procedure filed by the present appellant. It will be very difficult to say that it satisfies the basic ingredients for allowing an application for attachment before the judgment. However, in paragraphs 3 of the application, it has been stated that the injunction order passed by the Court has not been complied with and case under Section 406 IPC has been registered against the defendants. It has been specifically recorded by the learned trial Court in its order that the statement of accounts in furtherance to the order of the Court, has been filed. The registration of the case under Section 406 of the Indian Penal Code, per se, would not constitute a sufficient ground for passing of an order attaching property before judgment. Prima facie, it appears that the orders passed by the learned trial Court suffers from an error of jurisdiction apparent on the face of record. The application in substance, was dismissed. Thus, there could hardly be any justification for the Court to direct the defendant to furnish security. There appears to be an inbuilt construction in the order passed by the learned trial Court.