A.N.Dikshita - (1.) AGGRIEVED by the order dated 3-2-89 passed on the applications 7/C and 8/C by Sri N. M. Lal, 1st Addl. Civil Judge, Saharanpur, the defendant-applicants (hereinafter referred to as the applicants) have preferred this revision.
(2.) FACTS encompassing the controversy are that the plaintiff-opposite party (hereinafter referred to as the opposite party) filed a suit for recovery of Rs. 32,188/- along with interest at the rate of 18% per annum and the costs of the suit. On the date of the filing of the suit an application under Order 38 Rule 5 read with Section 151 CPC was also filed for attachment before judgment. The trial court allowed this application and the properties mentioned in the application were attached before judgment. The rent payable to the opposite party by the State Bank of India, Patiala was also directed to be deposited in court till the disposal of the application. This order was passed when the defendants had not even put in appearance. With the assistance of Sri Daya Shanker appearing for the applicant and Sri Ashok Mehta Advocate appearing for the opposite party this revision is being disposed of finally at the admission stage. Heard counsel for the parties.
(3.) LEARNED counsel for the applicant has submitted that it seems that the court below is not alive to the provisions of the Code of Civil Procedure and has shown utter disregard in its non-compliance. I find merit in this submission Order 38 Rule 5 CPC postulates as under :- " 5. Where defendant may be called upon to furnish security for production of property.-(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) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule, such attachment shall be void. There is not an iota of substance justifying the court below to have passed such an arbitrary and absolutely illegal order. It seems that the trial court is dispensing justice much against the procedure and only as per its whims and eccentricities. There is no finding that the defendent is about to dispose of whole or part of the property, nor there is any whisper in the order that the defendant is about to remove whole or any part of the property from the local limits of the jurisdiction of the court. It was on such satisfaction that the provisions contemplated a direction to furnish security in such sum as may be specified in the order or to produce the same at the disposal of the court when required. Admittedly before passing of the order no opportunity was ever afforded to the defendant to contest the application and the basic postulates of direction to furnish security has not been fulfilled. This order (impugned) is in the teeth of the provisions of the Order 38 Rule 5 (1) CPC. It is significant that the trial court is not aware about legal proposition and has grossly discarded the provisions of Order 38 Rule 5 (4) CPC. It is patently illegal. Instead of complying with the requirement of law the justice is being dispensed with by the trial court with a stroke of pen which was not even prevalent or heard of in history. The order being patently illegal deserves to be set aside. However, the interest of the opposite party (plaintiff) is also required to be protected. The applicant is directed to furnish a security to the extent of Rs. 15,000/- to the satisfaction of the court below within a month of the production of the copy of this order. However, with the passage of time if the court below finds that further security is required for the sum claimed, then it may do so.;