Jaswant Singh, J. - (1.) PETITIONERS /Defendants are in revision under Article 227 of the Constitution aggrieved against the order dated 11.03.2014 passed by the learned Additional Civil Judge (Sr. Divn.), Patiala, whereby their application under Order 38 Rule 5 C.P.C. filed by the plaintiffs/respondents for attachment of property before judgment was allowed and consequently, the property of the petitioners was attached. Learned Counsel for the petitioners has argued that the respondents/plaintiffs had earlier also filed a similar application for attachment which was dismissed by the learned trial Court vide its order dated 2.5.2012 and, therefore, the second application is not maintainable. Secondly, it has been argued that this particular property which has been attached before judgment by the learned trial Court already stands mortgaged with the bank and, therefore, it cannot be attached as no second charge can be created. Finally it has been argued that the defendants/Petitioners had categorically stated in their reply that they are not disposing of the property in question and hence, the impugned order was not at all warranted by the learned trial Court in attaching the property.
(2.) AFTER hearing learned Counsel for the Petitioners and perusing the paper book, this Court is of the considered opinion that the present revision is devoid of any merit and the same deserves to be dismissed. In the present case it is not in dispute that the respondents/plaintiffs had earlier also filed an application for attachment of the property before judgment, however, said application was dismissed being vague as plaintiff had not taken any specific allegation as to how the defendants are out to dispose of the properties. However, in the present application which was filed by the respondents/plaintiffs before the learned trial Court numerous instances were mentioned along with prima facie proofs to show that the defendants are trying to dispose of the machinery which is attached to the disputed property and thus diminishing the value of the property. In such circumstances, this Court is of the opinion that the learned trial Court was justifiable in entertaining the second application for attachment before judgment. As far as the plea taken by the counsel for the petitioners regarding the property being mortgaged with the bank is concerned, this Court is of the opinion that there is no bar in law whereby the property which has already been mortgaged cannot be attached before judgment by the Civil Court as at the least second charge cannot be created over the property. If the plaintiffs/respondents succeed in their case, they can always proceed in consonance with the bank to recover their amount from the property which stands attached.
(3.) AS far as the final argument that was raised before this Court regarding they being not disposing of the property is concerned this Court is of the opinion that mere statement is not enough especially in view of the facts and circumstances of the case in hand and thus, learned trial Court was justified in attaching the property. Furthermore, this Court is of the opinion that if the defendant is not disposing of the property then he had no grievance at all for approaching this Court even if the impugned order was passed and the property was attached. In view of the above, finding no merit in the present revision petition, the same is hereby dismissed with costs of Rs. 10,000/ - to be deposited with State Legal Services Authority, Patiala.;