BEDANAND RAI Vs. NABOKUMAR SINGH

JUDGEMENT

(1.) This appeal is directed against) an order of the learned Subordinate Judge of Purnea, dated 14 December 1936, under Order 38, Rule 6, Civil P.C., attaching before judgment the properties of the defendants. The plaintiff instituted a suit on the basis of a handnote executed by defendant 1 on 26 February 1934 for a sum of Rs. 16,300, The plaint in the suit was filed on 18 July 1936 and the petition for attachment before judgment was made on the same day stating that certain transfers had been made by defendant 1 and that the plaintiff had heard from Ram Parsad Singh of Sapni that the defendant was prepared "to alienate through collusive sale and benami rehan etc his remaining properties in the names of his creatures." Notices were served upon the defendants, evidence was gone into, and the learned Judge in the Court below has discussed the evidence adduced by both the parties.

(2.) The learned Judge an the evidence of the witnesses has come to the conclusion that major portion of the properties has been transferred and says: "For the purpose of disposing of the present petition, it has to be taken that the transactions are real" and unless an attachment is made the plaintiff will not be able to realize his dues. He ultimately finds: There are sufficient circumstances in this case as above pointed out which would lead one to suspect that the defendants had an intention of disposing of their properties. It is important in this connexion to mention come of the transfers that had taken place. The transfers referred to in the evidence of the witnesses are: (1) a sale deed dated 22 September, 1935; (2) a rehan deed dated 27 May 1936; (3) another rehan deed dated 28 May 1936. From the dates it will appear that all the transactions took place before the suit was instituted. At this stage I had better refer to Order 38, Rule 5, Civil P.C., to see the conditions that are to be satisfied before an attachment before judgment under Rule 6 of that Order can be made. Rule 5 of Order 38 provides (1) "Where at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant with intent to obstruct or delay the execution of any decree that may be passed against him: (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.

(3.) If the defendants before us failed to satisfy the Court, then an order for attachment before judgment could be passed under Order 38, Rule 6. Now, in this case the evidence discloses that the three transfers mentioned above took place before the date of the suit. On the question as to what the future intention of the defendants was with regard to the alienation, there is only a statement in the affidavit which refers to an information received from Ramprasad Singh that the defendant was going to transfer the property.