ANIL KUMAR Vs. STATE OF JHARKHAND AND ORS.

JUDGEMENT

(1.) Aggrieved by order dated 26.03.2003 and order dated 29.09.2003 whereby, order of attachment under Order XXXVIII Rule 5 CPC has been passed, the present writ petition has been filed.

(2.) The petitioner is defendant no. 1 in Money Suit no. 63 of 2002 which was filed by the respondent no. 2 for a decree for a sum of Rs. 60,000/. In the pending suit the petitionerdefendant no. 1 appeared and filed an application raising a question of limitation. The petitioner simultaneously filed written statement alleging that the plaintiff was a money lender and the suit was barred under Bihar Money Lenders Act. The story of loan to him was denied by the petitioner. In the written statement the petitioner pleaded that the suit was barred by limitation.

(3.) The learned counsel for the petitioner submits that though, the suit was apparently barred by limitation, the Trial Court mechanically passed an order under Order XXXVIII Rule 5 CPC and directed the petitioner to furnish security of Rs. 60,000/. It is contended that without recording a finding of primafacie case in favour of the plaintiff and the reasons for the order of attachment, impugned orders have been passed mechanically.