- (1.) T. P. Garg, J. Both the aforesaid First Appeal From Order No. 419 of 1995 and Civil Revision No. 325 of 1995 have been filed against the order dated 8-2-1995 passed by Sri Prem Chandra, Civil Judge, Firozabad. We, therefore, propose to dis pose of both by this common judgment.
(2.) BRIEFLY, the facts of the case are as under: In May, 1992 Bank of India through its Branch Manager, Firozabad, filed a suit being Civil Suit No. 63 for the recovery of Rs. 80,22,381. 43 against Manoj Kumar Singhal and others, defendants appellants, and respondent Nos. 2 to 12. The plaintiff Bank sanctioned cash credit limits in favour of the defendants for various amounts from time to time. Initially, the cash credit (hypothecation of stock) limit was sanc tioned for a sum of Rs. 24,00,000. Thereafter, a limit to the tune of Rs. 20,00,000 was sanctioned for the purchase of bills, a sum of Rs. 5,00,000 for D. P. limit and a sum of Rs. 30,00,000 for inland letter credit were sanctioned. The defendants executed various documents including Demand Promissory Notes and agreement of hypothecation in favour of the Bank for the aforesaid credit limits/advances on 30-5-1990. The defendants also mortgaged various movable and immovable properties in favour of the Bank as shown in the list filed along with the plaint. The defendants appellants did not make payment towards the outstanding dues and hence the suit for recovery of Rs. 80,22,381. 43. During the pendency of the suit, the plaintiff filed an application 49-Ga under Order XXXIX, Rules 1 and 2 of the Code of Civil Procedure for temporary injunction to restrain the defendants from transferring or alienations the properties detailed in the list filed along with the application to any person during the pendency of the suit. Another application 50-Ga under Order XL, Rule 1 of the Code was also filed, which is still pending consideration by the trial court. Another application 205-Ga was filed by the plaintiff-bank under Order XXXVIII, Rule 5, C. P. C. for attachment of properties, detailed in Schedule 5-A, filed along with the application for attachment before judgment. It is aljeged in this application that the defendants, in order to obstruct or delay the execution of any decree that may be passed against them were about to dispose of the properties shown in the schedule, and if they succeed in doing so, it would result in various complications with regard to the recovery of the amount qua which the decree may be passed. Notices of both the applications were given to the defendants and after hearing the learned counsel for the parties, learned Civil Judge allowed the application 49-Ga under Order XXXIX, Rules 1 and 2, C. P. C. and restrained the defendants from transferring, removing or creating any charge on the properties detailed in the list as shown in the Schedules A,b, D and E. The Application 205-Ga under Order XXXVIII, Rule 5, C. P. C. was, however, rejected.
(3.) MANOJ Kumar Singhal and Rameshwar Prasad Sharma, two of the defen dants, have filed an appeal against the aforesaid order so far as pertains to grant of temporary injunction restraining them from transferring or alienating the properties shown in the Schedule. The plaintiff-Bank has, however, preferred a Civil Revision against the impugned order so far as it pertains to the rejection of its application under Order XXXVIII, Rule 5, C. P. C. Counter affidavit and rejoinder affidavit have been exchanged between the parties. We have heard the learned counsel for the parties and also gone through the record of the case.;