IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 15.11.2011 CORAM THE HON'BLE MR. JUSTICE VINOD K.SHARMA O.A.Nos.865 and 866 of 2011 and A.No.5189 of 2011 in C.S.No.700 of 2011 ORDER This order shall dispose off O.A.Nos.865 and 866 of 2011 and A.No.5189 of 2011 in C.S.No.700 of 2011, praying therein as under: i) O.A.No.865 of 2011  To grant interim injunction, restraining the respondents 2, 3 and 4 as well as the first respondent and respondents 5 to 11 from collecting rents as well as enhanced rents if any and additional advances from respondent Nos.12 to 25, they being the tenants in the suit property Nos.159 and 160, T.T.K. Road, Alwarpet, Chennai  600 018, more particularly described in the schedule, pending disposal of the suit. ii) O.A.No.866 of 2011  To appoint an Advocate Receiver to collect, from the 12 to 25 respondents/Garnishees, the monthly rents being paid by them to respondents/defendants 1 to 11, as tenants in the suit schedule property and more particularly described in schedule, in respect of the portions occupied by them therein and to deposit the said amount into this Court of the above suit after deducting the statutory dues like property tax etc., pending disposal of the suit. iii) A.No.5189 of 2011  To direct the 12 to 25 respondents/Garnishees, who are occupying as tenants in different portions of the suit schedule property and more particularly described in the schedule to deposit every month into this Court, the monthly rents being paid by them to the third respondent or respondents 1, 2 and 4 to 11, pending disposal of the application for appointment of an Advocate Receiver in the suit. 2. The applicants/plaintiffs filed a suit for partition by metes and bounds of the property bearing Old No.71, New Nos.159 and 160, T.T.K. Road, Alwarpet, Chennai. Each of the plaintiffs claimed 1/4th share in the half share of their late father R.Velayudham. The prayer is also made for recovery of Rs.1,32,618/- (One Lakh Thirty Two Thousand Six hundred and Eighteen only) from defendants 1 to 4, towards plaintiffs' share out of the rent in respect of portion occupied for the month of May, June and July 2011 and for 50% share in the rental income with respect to the suit premises from August 2011 onwards. The plaintiffs also prayed for retention of accounts of the income derived from family business for a period of three years, prior to filing of suit and payment of their share. 3. Consequential relief has been prayed for permanent injunction, restraining defendants from alienating in any manner charging or encumbering the suit property as detailed in the schedule. 4. The reading of the plaint shows that the specific prayer in the suit is for recovery of specified amount and for reduction of account, and the injunction prayed is only with regard to alienation, charging or encumbering of suit property. 5. In paragraph-12 of the plaint, the details of tenants have been given by pleading therein that third defendant is collecting the entire rental income from the suit property. The plaintiffs claim 50% share from the suit property for which a notice was said to have been issued to the tenants, calling upon them not to pay rent to defendants 2 to 4, but inspite of notice, tenants continue to pay rent to defendant no.3, thus, it would be seen that defendant nos. 12 to 25 have been impleaded as defendants merely being tenants. 6. The suit, therefore, prima facie suffers from mis-joinder of party, as tenants cannot be impleaded as party. Even if the object of the impleading defendant nos. 12 to 25 is as garnishees, still the suit is bad for non-joinder of parties. 7. Order 21 of the Code of Civil Procedure deals with execution of decrees and orders. It is under the provisions of Order 21 Rule 46, 46(A), 46(B), 46(C), 46(D), 46(E), 46(F) & 46(G), that order can be passed in execution of decree in a pending suit. The only provisions to secure the claimed amount is governed under Order 38 Rule 5 of the Code of Civil Procedure, which reads as under: "5. Where defendant may be called upon to furnish security for production of property (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him, (a) is about to dispose of the whole or any part of his property, or (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. (2) The plaintiff shall, unless the court otherwise directs, specify the property required to be attached and the estimated value thereof. (3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified. (4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void." 8. A perusal of the above provision would show that the Court has been cloaked with the power to call upon the defendant to furnish security for production of property, even before the judgment, in case the Court is satisfied that the defendant, with an intent to obstruct to delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. 9. Further still, Hon'ble Supreme Court of India in the case of M/s. Raman Tech & Process Engg. Co. v. M/s.Solanki Trader, 2008 (2) SCC 302, has observed as under: "The power under Order 38, Rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38, Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged. Instances are not wanting where bloated and doubtful claims are realised by unscrupulous plaintiffs, by obtaining orders of attachment before judgment and forcing the defendants for out of court settlements, under threat of attachment." 10. In light of the express provisions of Order 38, Rule 5 CPC and the observations of the Hon'ble Supreme Court in the matter of M/s. Raman Tech & Process Engg. Co. v. M/s.Solanki Trader, supra, the position of law that emerges is as under: (i)The Court, before calling upon the defendant to furnish security for production of property, has to be satisfied that the defendant, with an intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court. This satisfaction of the Court has to be objective and not subjective in as much as there has to be a positive and definite material before the Court to enable the Court to come to a prima facie conclusion that the defendant is about to dispose of the whole of part of his property with an intention to obstruct or delay the execution of any decree that may be passed against him. Merely because a suit is filed or about to be filed against him, the defendant is not debarred from dealing with his property. Accordingly, mere fact that some material is placed before the Court showing that defendant has disposed of some of his properties would by itself not be sufficient for the Court to exercise the powers conferred upon it under Order 38, Rule 5 CPC without their being further material on record to show that the property is being disposed off by the defendant with an intention to frustrate the probable decree that may be passed against him The intention of the defendant to remove or dispose of the whole or part of his property, with a view of obstructing or delaying the execution of any decree that may be passed against him is sine qua non before the power under Order 38, Rule 5 can be exercised by the Court. However, it may also be observed here that the question of ascertaining the intention of the defendant is a vexed question having no easy solution and precise mathematical tests. The true intention of the defendant in disposing of the whole or part of his property would thus, have to be determined by the Court having regard to the particular facts and circumstances of each case. (ii) The Plaintiff- Applicant is required to satisfy the Court that all the ingredients specified in Order 38, Rule 5(1) CPC exist before the application filed by the Plaintiff-Applicant can be allowed. The same is evident from the reading of Clause 4 of the Order 38, Rule5. Merely because the defendant will not be prejudiced cannot be a ground in itself for the Plaintiff- Applicant to argue that the power under Order 38, Rule 5 CPC should be exercised by the Court. Accordingly, the Plaintiff-Applicant is required to place sufficient material before the Court so as to enable the Court to form a prima facie opinion that the defendant, with an intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property. In order to do so, the Plaintiff-Applicant may be required to swear an affidavit in support of his application detailing the name, address and sufficiently describing the identity of the person or persons from whom he has received the information about the attempts of the defendant to dispose of the whole or any part of his property with an intent to obstruct or delay the execution of any decree that may be passed against him. As the matter with regard to the power of the Court to call upon the defendant to furnish security for production of property, even before the judgment, has been detailed and expressly provided in Order 38, Rule 5 CPC, the Court cannot resort to its inherent powers under Section 151 CPC and call upon the defendant to furnish security for production of property in case the ingredients of Order 38, Rule 5(1) CPC are not fulfilled. Reference in this regard can be made to the judgment of the Hon'ble Supreme Court in the matter of Nahar Industrial Enterprises Ltd v. Hong Kong & Shanghal Banking Corporation, 2009 (8) SCC 646, wherein it has been held that where a matter has expressly been provided for in the CPC, inherent power cannot be resorted to. 11. It is true that in the event of satisfaction of condition laid down under Order 38 Rule 5 of the Code of Civil Procedure, the amount due from garnishee can also be attached to be regulated at the time of passing of final decree. In absence of any pleadings to make out a case, it is not permissible to the plaintiffs to implead tenants in a suit for partition, as has been shown in the present case. 12. In this background of the matter, each of the applications is being disposed off; O.A.No.865 of 2011: i) In this application, the applicants / plaintiffs pray for interim injunction, restraining respondents 2, 3 and 4 as well as the first respondent and respondents 5 to 11 from collecting rents as well as enhanced rents if any and additional advances from respondents 12 to 25, they being the tenants in the suit property. ii) The only allegation made in the application is that respondent no.3 is collecting the entire rental income from the suit property. There are no other allegations whatsoever. In a suit for partition, the plaintiffs would be entitled to retention of account, but cannot have jurisdiction to restrain the co- owner from collecting the rent from tenants engaged by the landlord. iii) The impleading of respondents 12 to 25 itself are bad in law. Similarly, prayer made in this application is misconceived. The Courts, by way of interim direction, can issue orders in the nature of prohibition to maintain status quo, but a direction in the nature of mandatory form cannot be ordered, merely on the asking of the parties, as power of mandatory injunction can be exercised in very rare cases, as relief in mandatory nature amounts to final relief. iv) The application made by the applicants / plaintiffs seems to be motivated with ulterior motive to harass defendants from collecting rent. There is no irreparable loss to the applicants / plaintiffs as in the event of success, defendants would be bound to give account of rend collected and this Court can always pass a decree, which can be executed. In that event, garnishees can be directed to deposit the amount in Court, if the decree is not executed by sale of properties etc. v) O.A.No.865 of 2011 is, therefore, dismissed, being not competent. O.A.No.866 of 2011: i) This application has been moved for appointing an Advocate Receiver to collect the amount from respondent nos. 12 to 25, monthly rent, being paid to them. ii) This application is again misconceived. No Advocate Commissioner can be appointed, as pleadings show that the amount is the determined amount and it is always open to applicants / plaintiffs to claim the amount in accordance with law. iii) The settled status cannot be modified during the pendency of the suit. This application is nothing, but an attempt to deny the decision of the suit. iv) Consequently, this application, being totally misconceived, is ordered to be dismissed. A.No.5189 of 2011: i) This application, for directing the respondents / garnishees to deposit rents in this Court which is being paid to the third respondent or respondents 1, 2 and 4 to 11. ii) This application is again misuse of process of Court. It is not understood that O.A.No.865 of 2011 filed seeking interim injunction from collecting rent, in O.A.No.866 of 2011, applicants pray for appointment of Advocate Receiver, whereas A.No.5189 of 2011 filed for deposit of rend in Court. It only shows that the applicants / plaintiffs are trying to harass defendants with malafide intention by way of interim orders, therefore, what relief applicants / plaintiffs are entitled to under law. 13. All these applications, for the reasons stated herein above, are misconceived and seems to be pressure tactics to harass defendants in a suit for partition. The applicants / plaintiffs therefore cannot be said to have approached this Court with clean hands. 14. The applicants / plaintiffs have further failed to prove prima facie case nor balance of convenience are in favour of applicants / plaintiffs. The applicants / plaintiffs are not going to suffer irreparable loss or injury. 15. The applications also do not disclose any ground, as envisaged under Order 38 Rule 5 of the Code of Civil Procedure for protection of interest of the plaintiffs / applicants pending suit. 16. Consequently, all the applications are dismissed. No costs. jrl ar