RANJIT SINGH,J - (1.) HARVINDER Singh, defendant, has filed this revision against the order, requiring him to furnish security in the sum of Rs. 18,54,000/-, failing which his property as mentioned in the application moved under Order 38 Rule 5 CPC is to be attached. The dispute between the petitioner and the respondents-plaintiff relates to an agreement for sale of land measuring 44 Bigas 3 Biswas, for which the petitioner had paid a sum of Rs. 12,50,000/- as earnest money. Subsequently, the petitioner showed his inability to purchase the land and asked for refund of the earnest money. When the petitioner did so, the respondents expressed his difficulty saying that the money was not readily available with him. The respondents had sought time for making the payment. The agreement to sell, available with the petitioner, was handed over to the respondents and he was asked to furnish some security for payment of the amount of Rs. 12,50,000/-. The respondents thereafter issued two blank cheques out of their joint account. It is then pleaded that sum of Rs. 12,50,000/- was returned and the agreement was cancelled on 2.5.2006. The blank cheques, given as security, were asked to be returned, which the petitioner promised but lateron got these encashed. Thus, the petitioner has allegedly withdrawn a sum of Rs. 18 lacs from the account of the respondents, leading to filing of the suit for recovery.
(2.) ON the other hand, the case of the petitioner is that the respondents had backed out of the agreement and the matter was compromised when the petitioner agreed to take back the earnest money alongwith the damages of Rs. 5,50,000/-. Accordingly, two cheques for sum of Rs. 18 lacs were issued and encashed and the original agreement was returned to the respondents. In the original agreement, it was only mentioned that sum of Rs. 12,50,000/- was executed instead of Rs. 18 lacs and hence, he had denied the liability to pay this amount. The respondents have, thus, filed an application under Order 38 Rule 5 CPC, seeking attachment of the property, leading to passing of the impugned order. Learned counsel for the petitioner submits that the trial Court has passed the impugned order while over-looking the provisions of Order 38 Rule 5 CPC. The counsel submits that Court has directed the petitioner to furnish security or in alternative to attach the property on the mere allegation of the respondents that the petitioner is selling the property. He had not provided any sufficient basis in this regard which could have made the Court to pass the impugned order. It is submitted that provisions of Order 38 Rule 5 CPC can be invoked only when a strong case on facts is made out and not on the basis of facts as are available in the present case.
(3.) ON the other hand, counsel appearing for the respondents would say that the present revision even is not maintainable as the impugned order is appealable one. To substantiate his plea, he would submit that application though is moved under Order 38 Rule 5 CPC but the wording of the impugned order shows that it is made while invoking the provisions of Order 38 Rule 6 CPC. He, thus, submits that the impugned order would be appealable. He further says that except for this property, there is no security, which would be available for execution of a decree as and when passed against the petitioner and hence, the order of attachment can not be faulted.;