R.S. Chauhan, J. - (1.) THE petitioners -defendants are aggrieved by the order dated 22.1.2014 passed by the Additional District Judge No. 17, Jaipur Metropolitan by which an application filed under Order 38 Rule 5 CPC by the respondent -plaintiff has been accepted.
(2.) THE brief facts of the case are that the respondent No. 1 -plaintiff filed a suit for recovery and permanent injunction against the petitioners -defendants and the respondents No. 2 to 5 -defendants. The respondent -plaintiff No. 1 claimed that he and the petitioners -defendants had formed a partnership firm. Later on, it was agreed between the parties that the plaintiff shall retire from the partnership. In case he were to retire from the partnership, he shall be paid a sum of Rs. 64,50,000/ - by the petitioners -defendants. The said understanding was reduced into an agreement dated 4.8.2009 which was duly registered. In order to pay the aforementioned amount, seven cheques were issued by the petitioners -defendants in favour of the respondent -plaintiff. However, when the respondent -plaintiff tried to have four of these cheques encashed, they were dishonored on the ground that the petitioners had stopped payment of the cheques. Therefore, a decree for recovery of a total sum of Rs. 20,46,000/ - was sought for. Alongwith the suit, the plaintiff also filed an application under Order 38 Rule 5 CPC. The petitioners -defendants filed reply to the application. By order dated 22.1.2014, the learned trial court allowed the said application, and directed the petitioners -defendants to submit a bank guarantee within a period of one month, failing which, their FDRs which are lying with the Railways, were directed to be attached. Hence, this petition before this court. Mr. U.C. Upadhyay, the learned counsel for the petitioners, has vehemently raised the following contentions before this court: firstly, relying on the case of M/s. Cosmopolitan Trading Corporation v. Engineering Sales Corporation & Ors. [ : AIR 2001 (Raj.) 331], he has contended that before passing an order for attachment, the court is required to see the practical certainty of the plaintiff's success and the grave danger, or the fear that the dishonest defendant may run away or may create obstacles in execution of the decree. Therefore, according to the learned counsel, the application filed under Order 38 Rule 5 CPC cannot be allowed on mere apprehension of the plaintiff that the defendant may prevent execution of the decree.
(3.) SECONDLY , in the application filed by the respondent -plaintiff, he merely narrates that he has been threatened by the petitioners -defendants that they will dispose of their property in Jaipur, would close the business and would disappear. Hence, the application is based on merely apprehension.;