OMPRAKASH GUPTA Vs. JAGANNATH SURAJ BAKSH

JUDGEMENT

(1.) HEARD the counsel for the petitioner -plaintiff (hereinafter 'the plaintiff) and perused the impugned order dt. 23.11.2013, passed by the Additional District Judge No. 14, Jaipur Metropolitan, Jaipur. By the impugned order aforesaid, the learned trial Court has dismissed an application filed under Order 38 Rule 5 CPC by the plaintiff. While dismissing the application, the learned trial Court has recorded the statement of the counsel for the respondents -defendants (hereinafter 'the defendants') that the defendants were not in the process of disposing of their property nor in the debt to others to an extent which would jeopardize the recovery of amounts by the plaintiff in the event the trial Court were to decree the plaintiffs suit for recovery of money amounting to Rs. 23,20,6000/ -. The trial Court has also noted the fact that the application under Order 38 Rule 5 CPC was non -compliant with sub -Clause (2) thereof inasmuch as the value of the property sought to be attached had not been detailed. Referring to the judgment of the Hon'ble Supreme Court in the case of Raman Tech. & Process Engg. Co. & Anr. vs. Solanki Traders, : (2008) 2 SCC 302, the learned trial Court has noted that the power under Order 38 Rule 5 CPC should not be exercised mechanically or on mere asking and that the purpose of Order 38 Rule 5 CPC is not to convert an unsecured debt into a secured debt nor to allow the plaintiff to utilise the aforesaid provision to coerce the defendant to settle the suit claim. The learned trial Court further noted that in the absence of specific steps taken for sale of immovable property by the defendant/s to defeat the potential claim of the plaintiff, the application under Order 38 Rule 5 CPC for attachment of the property could not be entertained. The application was thereupon dismissed.

(2.) IN my considered opinion, in the overall facts of the case as also the statement of the counsel for the defendants before the trial Court that the defendants were not in the process of selling their property to defeat the potential decree for the plaintiff on his money suit, there is no occasion for this Court to interfere in this petition. Consequently, the petition is dismissed. It is however expected that the suit laid by the plaintiff would be disposed of expeditiously by the trial Court with reference to its docket and the age of the pending cases.