NARSINGH DAS Vs. VADI LAL

JUDGEMENT

(1.) THIS is an appeal from the order dated 3 -10 -1969 passed by the Additional District Judge No. 1, Jodhpur rejecting the application of the plaintiff -appellant under Order 38 Rule 5, Civil P.C.

(2.) ON 7 -5 -69 the plaintiff -appellant instituted a suit against the defendant -respondents for the recovery of Rs. 10,790/08 in the court of Additional District Judge No. 1, Jodhpur. On 31 -5 -69 the plaintiff put in an application under Order 38 Rule 5. Civil P.C. praying that the defendants be directed to furnish security for the decretal amount totalling Rs. 12040.08 failing which cloth worth Rs. 3,000/ - lying in their shop situated in Mehta Marked be attached. It was also prayed that the sum of Rs. 7,900/ - due to the defendants from the persons mentioned in the list appended to the application be attached under Order 21 Rule 46, Civil P.C With the application the plaintiff Narsingh Das besides his own affidavit, filed the affidavit of one Govindram. In the affidavits it was stated that the defendant Vadilal was going to sell his property and leave the State territory with intent to obstruct or delay execution of the decree that might be passed in the suit. The learned Additional District Judge on that very day issued an exparte order of attachment as prayed by the plaintiff. In pursuance of the order the Amin attached cloth worth Rs. 600/ - an 3 -6 -69 from the defendant's shop. Notices were also issued under Order 21 Rule 46 C.P.C. prohibiting the persons named in the list from giving the amounts to the defendants. On 11 -6 -69 the defendant Vadilal objected to the attachment made by the Court and under protest furnished surety bond of one Mangilal for Rs. 11,000/ -. The court accepted the surety bond and released the goods attached by the Amin and also withdrew the prohibitory order issued under Order 21 Rule 46, Civil P.C. The defendant therefore, on 3 -7 -69, filed a detailed reply traversing the allegations made in the application as also the allegations made against them in the affidavits of the plaintiff and Govindram In support of their, reply counter affidavits of Vadilal, Madanlal, Banshilal and Chunilal were filed At the time of arguments before the lower court the plaintiff filed two more affidavits, one of Manmal and another of Kantilal. The learned Additional District Judge on consideration of the affidavits and after hearing the parties rejected the application by his order under appeal. The operative portion of the order runs as under: The result is, that the application of the plaintiff under Order 38, Rule 4 coupled with Order 21 Rule 45 & Section 151 C.P.C. for attachment before judgment is dismissed; and the property attachted would be released and the debts alleged to be due to the defendant, which had been attached, under Order 21 Rule 46 will be released from attachment. Aggrieved by the said order, the plaintiff has preferred this appeal.

(3.) IT is common ground between the parties that the attachment of debts and moveable properties effected on 31 -6 -69 was withdrawn on 11 -6 -69 on the defendants' furnishing the surety bond of Mangilal. That being the case, it is useless for me to deal with the legality or otherwise of the attachment of the moveable property and the debts. The learned Additional District Judge also was not justified in saying in the operative portion of his order that the property may be released from attachment when it bad already been released long before the impugned order was passed. After release of the attached property on 11 -6 -69 the liability of the surety alone survived but it appears from the order sheet dated 3 -10 -69 that the learned Additional District Judge discharged the surety under a separate order. It is admitted before me that the plaintiff did not file any appeal against that separate order. The order discharging the surety thus became final and cannot now be challenged. That being the case. I fail to understand what relief the plaintiff can be granted even if it be held that the allegations made by the plaintiff in his affidavit or his application were not baseless or unfounded, In my opinion, This appeal has lost its utility and must be dismissed.