SENAJI KAPURCHAND Vs. PANNAJI DEVICHAND

JUDGEMENT

(1.) These appeals are from two orders made by the First Class (Subordinate Judge of Dharwar in applications by the plaintiff for attachment before judgment against the three defendants. The appellants are the first defendant and the second defendant.

(2.) The first point taken was that as an order has been made under Section 10 of the Civil Procedure Code staying the suit owing to the pendency of another suit between the same parties in the Court at Bellary, therefore no interlocutory order could be made in this unit. But under Section 10 it is provided that no Court shall proceed with the trial of any suit in which the matter in issue is also directly and substantially in issue in a previously instituted suit between the same parties That does not prevent the Court from making interlocutory orders, such as orders for a receiver, or an injunction, or, as in this case an order for attachment before judgment.

(3.) But on the merits it is perfectly clear that there were no grounds in this case for making an order under Order XXXVIII, Rull 5. We have often had to point out that under Rull 5 the Court must be satisfied that the defendant with intent to obstruct or delay the execution of the decree that may be passed against him has brought himself within the terms of the rule; and it is not I sufficient that there are merely vague allegations that the defendant is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, this case it is alleged against the first defendant that he was bout to recover the dues of his shop as soon as possible and to remove the articles in the shop. It is also alleged against the second defend ant that he was closing two shops one at Bellary and the other at Adoni dealing in yarn and shroff business. But of the two shops the shop at Adoni which had dealings to the extent of two or three lacs was closed about the last Divali holidays. As the property in the said chop had been disposed of nothing was left there. Besides this, the partnership shop at Bellary which had dealings to the extent of two to three lacs had almost closed its business and had dwindled into a very petty concern.