G. D. Dubey, J. - (1.) -This appeal has been preferred by the defendant against the judgment and order dated 31-7-89 passed by the First Additional Civil Judge, Kanpur asking the appellant to furnish security of Rs. 1,70,000/- by 5th of August, 1989, otherwise his property in his shop shall be attached.
(2.) THE plaintiff had filed this suit in the lower court for realisation of Rs. 1,70,000/- from the defendant. He had moved a petition under Order 38 Rule 5 of the Code of Civil Procedure (referred to as Code for brevity). THE plaintiff had urged that in order to obstruct and delay execution of decree that may be passed against him the defendant-appellant is disposing of the property in his shop in hot haste and even at a low price. On these grounds he had prayed that the cloths, furniture lying in shop no. 30 Aminabad, Lucknow styled as New Shree Durga Vastra Bhandar and cash if any in the till and the tenancy/ownership right in aforesaid shop be attached. The defendant-appellant had objected against this petition. He had alleged that he had a good running business of Sarees. He is a wholeseller and is selling his goods on profits. The lower court considered the matter and by the impugned order came to the conclusion that defendant had failed to prove that he has sufficient means. On this ground the court had passed the above mentioned order.
(3.) AT the very admission stage the parties had exchanged their affidavits with annexures of relevant documents filed before the courts and also relevant papers for consideration of this appeal; hence we are disposing it on merit. On a reading of the impugned order we are constrained to observe that judgment of the court consists merely in the narration of the facts alleged by the parties or contention raised by them but the consideration of the material placed on record and the reasons which impelled the court to arrive at the decision it has reached is totally wanting. It is indeed a wise policy to read the provision of law under which the proceeding has been initiated and we think the courts below would always find themselves on sounder footing if they do so. In, the instant case the order just narrates the rival cases of the parties and only in penultimate paragraph some time appears to have been spent (we refrain to say devoted) in considering the case relating to attachment before judgment. Unfortunately, even in doing so it has committed the fatal mistake of putting the burden on the defendant and almost exhonerating the plaintiff from establishing his case as to why an order of attachment be issued. 6-A. It surprises us that even in the matter of quoting the decision sufficient care has not been shown. For example one case is quoted as AIR 1982 page 990 without specifying the court whose decision it was. There is thus no indication if the case was decided by this High Court or by some other High Court of the country. At least in the matter of citing the case law the court ought to be careful so that those who happen read it may be able to conveniently lay their hands on it.;