1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R S.B. CIVIL WRIT PETITION NO.5977/2008 (Het Ram Vs. Ramswaroop & Ors.) Date of order : November 24th, 2008 P R E S E N T HON'BLE MR. JUSTICE GOPAL KRISHAN VYAS Mr. I.R. Choudhary, for the petitioner. Mr. Rakesh Matoria, for the respondent. In this writ petition, the petitioner has prayed for quashing the order dated 3.7.2008 (Annexure-6) passed by Civil Judge (S.D.), Bhadra upon application filed by the petitioner under Order 38 Rule 5 C.P.C. As per the petitioner, on the basis of the promissory note Annexure-1 and 2, respondent No.1 took a loan of Rs.2,62,000/- from the petitioner on monthly interest at the rate of 2% per month and the said promissory notes were executed on 10.6.2004. When the 2 said loan was not repaid, then, an application under Section 6 of the Rajasthan Relief of Agricultural Indebtness Act, 1957 (hereafter, for short, “the Act of 1957” only) was filed along with statement of claim for recovery with interest on 2.6.2007. A reply was filed by the respondent in which he denied the outstanding of loan. As per the petitioner under Section 16 of the Act of 1957 the proceedings under this Act so far as it is practicable is required to follow the same procedure as followed by the Civil Court while deciding the case in original civil jurisdiction. Hence, as per the petitioner, the provisions of Civil Procedure Code are applicable in the proceedings filed under Section 16 for recovery of loan under the Act of 1957. It is stated by the petitioner in the writ petition that an application was filed by the petitioner on 31.5.2008 before the Civil Judge (SD), Bhadra for ordering the respondent – Ramswaroop to give security and in failing to do so to attach his agricultural land. The said application was filed under Order 38 Rule 5 C.P.C. As per the petitioner a wrong reply was filed by the respondent – Ramswaroop on 1.7.2008 but the trial Court dismissed the application filed by the petitioner vide Annexure-6. As per the petitioner, the order Annexure-6 does not contain any direction or order to respondent Ramswaroop to give security and only observation has 3 been made that agricultural land of the respondent could not be attached under Section 37 of the Rajasthan Tenancy Act. Further, it is observed that if the petitioner submits the details of other properties of the respondent then, surely in case of non submission of security order for attaching the said property could be passed. Meaning thereby, the application of the petitioner filed under Order 38 Rule 5 C.P.C. has been dismissed only on the ground that the agricultural land cannot be attached in view of Section 37 of the Rajasthan Tenancy Act. In this writ petition, while challenging the order impugned, learned counsel for the petitioner has raised following grounds : Learned trial court has committed serious error of law and facts while passing the impugned order whereby the application filed by the petitioner was dismissed. It is further stated that the provisions of Civil Procedure Code are applicable to the proceedings and according to Order 38 Rule 5 CPC at any stage of the suit if the Court is satisfied by affidavit or otherwise that the defendant intends to obstruct or delay the execution of any decree that may be passed against him is about to dispose of whole or any part of his property, the Court may direct him either to 4 furnish security or to produce and place at the disposal of the Court when required the said property or value of the same as may be sufficient to satisfy the decree or to appear and show cause why he should not furnish security and the Court may also direct the conditional attachment of the property also. But according to the petitioner, no order has been made by the trial Court which is illegal and against the spirit of Order 38 rule 5 CPC. The another ground raised by the petitioner is that the respondent is trying to sell out his property on the false pretext of alleged sickness of his wife but in fact it is with intent to obstruct and delay the execution of decree which may be passed in favour of the petitioner on his claim being decided in his favour by the trial Court. Such act of the respondent is nothing but abuse of process of law. Further, it is argued that learned Court below has not even passed any order requiring the respondent to give security and thus committed an error on the face of record which would result in total failure of justice with the petitioner. It is also argued that there is no restriction or legal bar in sale of agricultural land of the respondent for his personal need or for any other purpose. Meaning thereby the respondent can 5 sale his agricultural land for the purpose of clearing the debt in question provided if he acts honestly and wants to repay the debt in question. Therefore, in above circumstances, the land in question was to be attached. Hence, there is no such bar under Section 37 of the Rajasthan Tenancy Act. Further, without prejudice to any other submissions, it is submitted that the provisions of Section 37 of the Rajasthan Tenancy Act may kindly be read down in such a manner so as to permit attachment of the respondent's land. During the course of arguments, so many other grounds, which are not taken in the writ petition were argued and while giving citation, the petitioner has tried to point out certain other Section of the Act of 1957, which is Section 13. He is also invited attention of this Court towards the judgment in case of Sagar Mal Vs. State of Raj. & Ors., reported in 1982 ILR (Raj.) 248 and prayed that the order impugned may kindly be set aside and application Annexure-4 may kindly be allowed in toto. Per contra in reply to the writ petition, it is submitted by the respondent that learned trial Court has rightly passed an order that agricultural land of the answering respondent could not be attached as per Section 37 of the Rajasthan Tenancy Act. The respondent also denied that any amount was received as loan from the petitioner on 10.6.2004 on monthly 6 interest. It is also vehemently contended that during the course of arguments, the petitioner has wrongly pointed out that other property is also in existence for which the order of attachment was to be passed by the trial Court. Learned counsel for the respondent while inviting attention to the application filed by the petitioner under Order 38 Rule 5 CPC submitted that in whole of the application, the only prayer has been made to direct the respondent to give security and in absence of that for attachment of the agricultural land. I have perused the entire pleadings of the case, so also the application filed by the petitioner and the reply filed to the application by the respondent. In whole of the petition, the petitioner has only made assertion with regard to agricultural land situated in Village Kalana in Khata No.540. Admittedly, the said land is agricultural land and according to Section 37 of the Rajasthan Tenancy Act, there is complete bar for attachment or sell by process of Court. Section 37 of the Rajasthan Tenancy Act is as follows : 7 “37. Bar to Seizure, attachment and sale by process of Court – The rights of tenant in a holding shall not be liable to seizure, attachment or sale by process of any civil Court.” Under Section 37 of the Rajasthan Tenancy Act the agricultural land cannot be seized or attached or can be sold in pursuance of any decree of the civil Court. I have perused Order 38 Rule 5 of C.P.C. Upon bare perusal of order 38 Rule 5 of CPC, it is revealed that this provisions is not mandatory but it is directory. It is for the Court to ascertain upon the facts that the defendant intends to obstruct or delay the execution of any decree that may be passed against him, can dispose of the property. The language of Order 38 Rule 5 C.P.C. clearly speaks that the Court may direct the defendant within time to be fixed by it either to furnish security in such sum as may be satisfied 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. Meaning thereby, Section 38 Rule 5 CPC is 8 not mandatory in nature. It is directory and it is for the Court to ascertain satisfaction. The plaintiff cannot claim as a matter of right the order from the Court. In this view of the matter upon perusal of the order impugned, it is revealed that the learned trial Court has rightly observed in the order that the agricultural land cannot be attached in view of Section 37 of the Rajasthan Tenancy Act. The judgment cited by learned counsel for the petitioner rendered by Coordinate Bench of this Court in case of Sagar Mal (supra) is based upon entirely different facts and the proceedings under the Sales Tax Act. Here in this case, the facts are entirely different then the case cited by learned counsel for the petitioner. Therefore, there is no force in the contentions raised by the petitioner in this writ petition. As such, no interference is required in the impugned order dated 3.7.2008. Accordingly, the writ petition is dismissed. In this case, something is required to be said with regard to the pleadings of the case. In whole of the writ petition or in the application filed by the petitioner before the trial Court under Order 38 Rule 5 CPC, there is not even mention of Section 13 of the Act of 1957 but during the course of arguments, learned counsel for the petitioner raised a ground of Section 13 of the Act of 1957 and tried to invite the 9 attention of the Court towards some documents showing the list of other property of the answering respondent. In my opinion without any pleadings before the trial Court and before this Court, no such vague grounds are required to be entertained. In this view of the matter also, there is no force in this writ petition. Hence, the writ petition is dismissed. No order as to costs. (GOPAL KRISHAN VYAS), J. arun