- (1.) The present revisions application is directed against as order dated 26.4.99 passed by the learned Judge, Senior Division, 7th Court at Allpore in Y. S. No. 193 of 1998. By the impugned order a petition under Order 38 Rule 5 of the Code of Civil Procedure has been held to be not proper and justified but at the same time the learned Judge has passed an order of security asking the defendant to execute a bend describing each sad every assets they have in the suit premises with their value that they would not alienate or dispose of the raid assets lying in the suit premises without permission of the Court. The connected petition of attachment before judgment is annexed to the revisional application. It appears that the prayer of the connected petition has been couched in a peculiar manner where prayer has been canvassed in a reverse form putting forward the consequential relief on e priority basis, namely, asking for furnishing security for a limited sum arcs then if the security is not furnished then to attach the assets of the defendant-company. This revisional Court is perplexed of the ambiguity of the prayer contained in the said petition. Such prayer for security deposit can follow as a consequential step flowing from an order where the Court is satisfied about attachment before judgment it is also salient to make a mention chat a provision is contemplated under Order 38, Rule 4 about procedure where defendants failed to furnish security and finds fresh security which is under the heading of arrest before judgment. Order 38 Rule 5 comes under the heading of attachment before judgment and in terms of Order 38 Rule 5, sub-rule (4), it is specifically laid down the order of attachment is made without compliance of provisions of sub-rule. such attachment is brought. From the perusal of the connected petition it appears that save and except a mention made in Paragraph 4 of the same that the defendant-company is now trying to take away its assets lying at the suit property, no other material averment is made and in support of the same only reliance was placed from a report of the Business Review published in 'Economic Times' and also from an order of closure of the business Save and except those two materials, the connected petition dots not also contain the material particulars about properties proposed to be attached in terms of its particulars and as such they are bereft of mention of any particulars about items of property which are proposed to be attached. The learned Judge of the trial Court has found on appraisal of the provisions of Order 38 Rule 5 and also on material assets of the petition as well as connected affidavit that it is not a proper case where an order of attachment before judgment can be passed and the Court felt hesitant in view of its observations that such order cannot be proper and Justified. In the wake of the same, a follow up procedure was sought to be persued in the impugned order which has been assailed and it has been commented upon by Mr. Chatterjee that there a detraction has been made from statutory compliance and the same has not been spelt out within the four corners of the provisions relating to attachment before judgment. In support of his submissions Mr. Chatterjee has referred to numerous decisions starting from 23 Cal LJ page 392, in the case of Mahendra Narain Saha & Others v. Gurudas Batragi & Anr. , where Sir Asutosh Mookerjec, J., while delivering the judgment has held that where an order of conditional attachment is not passed in terms of Clause 3 of Rule 5 of Order 38 and in absence of the same the Court cannot insist on furnishing security which will only arise in the given situation either spelt out under Order 38 Rule 3 or under any of the analogous provision. A further reliance has been made to the case of Durga Das Das v. Naltn Chand a Nandan & Ore. reported in AIR 1934 Calcutta 694 , where the learned Referee Judge has held that the plaintiff is required to prove some overt act towards the alienation of the properties and some vague allegation bordering on apprehension are not sufficient end they will not constitute ingredient of the mischief attracting of the provisions either of Order 38 Rule 3 of the Civil Procedure Code directly or of the consequential provisions. Mr. Chatterjee has also referred to the case of Sourendra Nath Mltra v. Smt. Tarubala Dost reported in 31 CWN page 432 , and it has been pointed out by placement of reliance of the said decision that order of attachment shall supersede first and question of furnishing security will follow up flowing from there. Apart from citation of the series of decisions from our High Court, Mr. Chatterjee has embarked into the journey by making reference to such decision of the other Courts but this Court feels that no such written exercise is necessary because Order 38 Rule 3 is comprehensive in itself and that appears to be mandatory which is in tune with the well settled ratio of law. In that view of the matter, this Court feels that the order impugned suffers from a strict element of irregular exercise of jurisdiction as insistence of furnishing of security in the impugned order cannot be made by the learned Judge in view of the missing link between the penultimate finding where the learned Judge of the trial Court, inter alia, held that the order of attachment before judgment does not appear to be proper and justified from the said premise, the conclusion does not follow. Therefore, this Court is not in a position to harmonise the premise and conclusion and as such it finds that the conclusion as it does not follow from the premise, therefore, it is not sustainable. Accordingly, it appears that the learned Judge of the trial Court has misdirected himself in passing the order impugned as it suffers from intrinsic element of jurisdictional error. Accordingly, the order Impugned is liable to be set aside and the revisional application 3tends allowed to the extent as indicated.
(2.) This order will not, however, prevent the opposite parties from taking appropriate steps or from initiating proper procedural process to achieve their object if the same is otherwise sanctioned in law. Mr. Mukherjee has also requested this Court to direct the trial Court to fix the hearing of the pending application under Section 17(2) and 17(2) (a) (b) of the West Bengal Premises Tenancy Act and the learned Trial Judge is directed to fix the same as expeditiously as possible. The present judgment will govern the other matter C. O. No. 1253(W)/1999 and the said revisional application stands allowed on the self-same observation.;