CR No. 5132 of 2010 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No. 5132 of 2010 (O&M) Date of Decision: 31.10.2011 Kirpal Singh Makhija & Anr. ...Petitioners Vs. M/s Dashmesh Weaving & Dyeing Mills Pvt. Ltd. ...Respondent BEFORE: HON'BLE MR.JUSTICE A.N.JINDAL Present: Mr.SBS Sobti, Advocate, for the petitioner. Mr.S.S.Rangi, Advocate, for the respondent. --- A.N.Jindal, J. Plaintiffs/petitioners had filed a suit for recovery of Rs.91,35,000/-. Along with the suit an application under Order 38 Rule 5 of the Code of Civil Procedure was filed for issuing directions to the defendant-respondent (hereinafter referred as the respondent) to furnish bank guarantee as security equivalent to the amount in suit. It was also averred that the defendant with intent to CR No. 5132 of 2010 2 obstruct and delay the execution of the decree is negotiating with number of property dealers for transferring the same to third party. If he succeeds in doing so, then it would be difficult for the plaintiffs to execute the decree. Upon notice the defendant contested the suit stating that since the earnest money paid by the plaintiffs stood fortified, therefore, the petitioners were not entitled to recover any amount, therefore, no attachment could be issued against him. As a matter of fact, in this case Kirpal Singh Makhija and Narvinder Singh Kalra, present petitioners, filed a suit for recovery of Rs.91,35,000/- on the basis of agreement to sell dated 25.6.2008. As the defendant could not prove himself to be the owner of property, therefore, finding that the agreement could not be enforced, the petitioners had to file a suit for recovery. It has not been disputed that the defendant was not the owner of the land in question at the time of entering into agreement to sell. The trial court has only dealt with the issue with regard to the attachment before judgment but has not considered, if the amount so paid by way of earnest money by the petitioners could be secured by seeking security. The petitioners, by way of affidavit, have pleaded that the respondent with an intention to obstruct and delay the execution of decree, which is likely to be passed against him, is threatening to dispose of whole of his property and to remove his entire property from the local limits of the jurisdiction of the court and that the defendant has already negotiated about the property with number of CR No. 5132 of 2010 3 property dealers in the city since filing of the suit and he is bent upon to dispose of whole property and is removing the same beyond the local limits of the jurisdiction of the court. It is also urged that the suit involves quite heavy amount. Thus, in view of the aforesaid affidavit furnished along with the application and keeping in view the heavy amount involved in the suit, the rights of the petitioners could be safeguarded by directing the respondent to furnish security particularly in view of the fact that the defendant admits having received the said amount. It may further be observed that since the trial court has not considered this aspect of the case and has only dealt with the law regarding attachment before judgment as such the order needs to be modified. Consequently, this petition is partly accepted. The impugned order is set aside and it is directed that the respondent would furnish security of the equal amount to facilitate the execution of decree which may ultimately be passed in favour of the petitioners and against the respondent within one month from today and in case of failure to do so, the Court would be at liberty to proceed further. (A.N.Jindal) 31.10.2011 Judge rp