Decided on January 01,1960

Heman Lal Gupta Appellant
Narayan Shaw Respondents


- (1.) This Rule is directed against an appellate order refusing the Plaintiff Petitioner's prayer for attachment before judgment of certain properties of the opposite party, mentioned in the Plaintiff's application, filed for the purpose, under Order XXXVIII, Rule 5 of the Code of Civil Procedure. There were litigations between the parties who were landlord and tenant in respect of certain premises. The ejectment suit which was filed by the Petitioner-landlord succeeded up to this Court. Thereafter, when the ejectment decree was put into execution, there was a compromise between the parties. Under the terms of the compromise, the Defendant opposite party was to vacate the disputed premises within a certain date and he was also to pay mesne profits until his quitting of the premises. No payment, however, appears on the present state of records, to have been made by the opposite party and the Plaintiff, accordingly instituted the present suit for recovery of mesne profits, basing his claim for the same at a certain rate. In the suit, an application was made by the Plaintiff-Petitioner for attachment before judgment, as aforesaid. On the said application, the trial court passed an initial order obviously under Order XXXVIII, Rule 5 of the Code, directing issue of notice upon the Defendant-opposite party ''to show cause, within 7 days from service, as to why he should not furnish security to the extent of Rs. 3,100 for the Plaintiff's claim and probable costs of the suit, or, in the alternative, why the properties, mentioned in the Plaintiff's petition, should not be attached before judgment", with a further direction that "mean "while, let the properties above mentioned be conditionally ''attached before judgment". This was obviously an order under Order XXXVIII, Rule 5 of the Code and it appears to have been made in strict compliance therewith.
(2.) Upon service of the notice, the Defendant opposite party appeared before the learned Subordinate Judge and showed cause against the Plaintiff's application for attachment before judgment. The learned Subordinate Judge, however, was of the opinion that in the circumstances the Defendant should either furnish security for the Plaintiff's dues, or the properties mentioned in the Plaintiff's application as aforesaid, should be attached before judgment and it passed an order in this form: That the Plaintiff's prayer be allowed on contest. Cost will abide the result of the suit. Pleader's fee Rs. 10 only. The Defendant is directed to furnish security to the extent of the amount claimed in the suit together with costs so far incurred, within ten days from date. On proper security being furnished and accepted, the order of conditional attachment will be withdrawn and, failing it, the attachment will continue.
(3.) This order was passed on September 24, 1958. No security, however, was furnished by the Defendant opposite party in terms of the aforesaid order; but, on November 13, 1958, i.e., long after the expiry of the ten days, fixed for the furnishing of the security, an appeal was filed by him against the aforesaid order of the learned Subordinate Judge.;

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