HIGH COURT OF UTTARAKHAND AT NAINITAL Writ Petition No. 327/2010 (M/S) Pawan Kumar Saini …Petitioner Versus Jogendra Kumar. …Respondents Shri Rajendra Singh, Advocate for petitioner. Shri Arvind Vashishtha, Advocate for respondent. Dated: March 27, 2010 Hon’ble V.K. Bist, J. This writ petition has been filed by the petitioner seeking a writ in the nature of certiorari quashing the impugned order dated 10.03.2010 passed by Civil Judge (Sr.Div.), Roorkee, District Haridwar in Original Suit No. 42 of 2009 ‘Pawan Kumar Saini vs. Jogendra Kumar’. 2. Brief facts of the case are that on 27.05,2009 the petitioner filed a civil suit before the Court of Civil Judge (Sr. Div.), Roorkee, District Haridwar under Order XXXVII of the Code of Civil Procedure, 1908 for recovery of Rs. 10,80,000/- alongwith interest @ 12% which was registered as O.S. No. 42 of 2009 ‘Pawan Kumar Saini vs. Jogendra Kumar. 3. The petitioner also filed a criminal complaint case (No. 1807 of 2006) against the respondent u/s 138 of Negotiable Instrument Act, in which the respondent was convicted. Aggrieved by the conviction order the respondent moved criminal appeal no. 58 of 2008 which was finally allowed on 03.03.2010 and the judgment passed by the Trial Court was set-aside. 2 4. It is mentioned in the writ petition that an application no. 8C was also moved by the petitioner under Order 38 Rule-5 and Section 151 of C.P.C to restrain the respondent from withdrawing certain amount and an application 6C under Order 39 Rule-1 read with Section 151 of C.P.C. and the Court below passed an order on 27.05.2009 whereby interim order was passed restraining the respondent not to withdraw the amount. The respondent also submitted his objection against the application filed by the petitioner. On 17.09.2009 the Court below passed order whereby application nos. 34C-2 and 48C-2 were disposed of and the respondent was directed to furnish security of Rs. 10,80,000/- within three months as a condition precedent to defend the suit and the respondent has given security bond of the sum in question in the Trial Court. It is averred in the petition that 24.02.2010 was fixed before the Trial Court and the Presiding Officer was on leave, therefore the matter was fixed for 30.03.2010. It is further averred in the petition that much prior to the date fixed i.e. 30.03.2010, on 02.03.2010 the respondent moved an application 74-B for expedite hearing of the case and on the request of the respondent the Court below fixed 06.03.2010, to which the petitioner had no knowledge. On 06.03.2010 also the Court below fixed 10.03.2010. On 09.03.2010 the respondent, one before the date of hearing i.e.10.03.2010 again moved application no. 79A under Order 39 Rule-4 read with Section 151 C.P.C. On 10.03.2010 the Court below passed the order under challenge whereby the earlier order passed on 27.05.2009 in the changed circumstances was withdrawn and 30.03.2010 was fixed for hearing on application 6C-2 on merits. 3 5. I have heard Sri Rajendra Singh, the learned counsel for the petitioner and Sri Arvind Vashishtha, the learned counsel for the respondents and perused the entire material available on record. 6. Shri Rajendra Singh, the learned counsel for the petitioner submitted that order impguned has been passed behind the back of the petitioner merely on the ground of changed circumstances i.e. acquittal of the respondent by the order dated 03.03.2010 passed in the criminal appeal by the Appellate Court, although the petitioner has preferred a criminal appeal aggrieved by the order dated 03.03.2010 in which leave to appeal has been granted and appeal is admitted. Learned counsel for the petitioner contended that finding of the criminal court is not binding in the civil case and there was no occasion before the Court below to pass order on 10.03.2010 much prior to the date already fixed in the matter i.e. 30.03.2010 whereby the Court below in the changed circumstances has recalled the earlier order dated 27.05.2009 passed on application 6C-2. It is vehemently contended that in the garb of impugned order, the respondent is interested in withdrawing the amount from certain department, while he was restrained by the order of the Court below passed on 27.05.2009. The respondent has given bank guarantee only to the extent of the original amount as claimed by the petitioner in civil suit and he does not include interest as claimed by the petitioner, therefore the interest part is not secured and in case, the respondent is succeeded in withdrawing the amount in the garb of the impugned order, the petitioner will suffer irreparable loss. Lastly, it is submitted that the trial Court has passed the order in harried manner behind the back 4 of the petition and that also much before the date fixed which shows bias approach of the trial court. 7. Learned counsel for the respondent argued that instant petition has been filed against order dated 10.03.2010 passed on application under Order XXXIX Rule-4 C.P.C. and the order is appealable under Order XLIII Rule 1 (r)C.P.C., therefore the writ petition is not maintainable and is liable to be dismissed. It is contended that unlike other suits, the defendant in these suits is not entitled to defend the suit as matter of right and application for permission to defend the suit is required to be filed and it is only after the Court’s permission to defend the suit is granted, the defendant is entitled to defend the suit else the suit will proceed on plaintiff’s evidence only. It is contended that the Code of Civil Procedure under Rule 5(1) of Order XXXVII provides the procedure which ensures that order under Order XXXVIII for pre decree attachment is not passed without giving any opportunity of hearing to the defendant. He further argued that the intention of the legislation to insist upon the procedure of under Order XXXVIII is so clear that it has been specifically provided under Rule 5(4) that any order passed without adhering the procedure of Rule 5(1) shall be void and without following the procedure under Order XXXVIII for pre decree attachment the Court below on very first day of the suit passed an order of attachment and allowed the application for attachment in toto. Thus, the order was passed in violation of the procedure prescribed under Order XXXVIII C.P.C. for pre decree attachment. Learned counsel for the respondent argued that the said order was passed without issuing notice, therefore the same is illegal and void as no attachment 5 order could have been passed without giving the aggrieved party an opportunity to furnish security and thus, due to procedural non compliance the order impugned is void as mandated by Order XXXVIII Rule 5(4) C.P.C. Learned counsel for the respondent argued that the impugned order has rightly been passed which does not suffer from any illegality or error. 8. I have perused the relevant Rules and entire material available on record. Order XXXVIII Rule 5 C.P.C. stands for where defendant may be called upon to furnish security for production of property and sub Rule (4) provides that if an order of attachment is made without complying with the provisions of sub Rule-1 of this rule, such attachment shall be void. Sub Rule (1) of Rule-5 of Order XXXVIII C.P.C. provides that 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 when he is about to dispose of the whole or any part of his property, or when he 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. Perusal of the record shows that the respondent was in quest of expedite hearing of the case as he moved an application on 02.03.2010 for preponing the case. Record further reveals that in the proceedings of the 6 Court below on 03.03.2010, counsel for the petitioner was aware of the date and a junior to the petitioner’s counsel was present in the court for defending the case. The fact of service upon petitioner was brought on notice of Court on 03.03.2010. The respondent adduced evidence on record reference of which is there in the order dated 10.03.2010 itself. On 09.03.2010 the respondent filed an application no. 79 under Order 39 Rule 4 read with Section 151 C.P.C. and in support thereof he adduced documentary evidence. The respondent was permitted to contest the suit subject to furnishing guarantee of disputed amount in the Court. The respondent submitted Bank Guarantee of Rs. 10,80,000/- alongwith original security bond by preparing a registered Indemnity bond, therefore the disputed amount is fully secured by security bond. 9. After his acquittal from the criminal case the respondent was eager for early hearing and on his application the Trial Court preponed the case and recalled the exparte order passed in the matter. This approach of Trial Court is not appreciated as this Court does not find any valid reason for the Trial Court to prepone the date of hearing. But, on merit this Court finds that since the order dated 27.05.2009 was passed without complying the provision of sub-rule (1) of rule 5 of Order XXXVIII, the same was rightly recalled by the learned Trial Court. I do not find any illegality, infirmity or perversity in the order dated 10.03.2010 passed by the Court below and the same does not warrant any interference by this Court. 10. In view of the above discussions, the writ petition is dismissed. However, the Trial Court is directed to decide 6-C-2 application without further delay. 7 11. No order as to costs. 12. Stay application (CLMA No. 1501/2010) stands disposed of accordingly. (V.K. Bist, J.) 27.03.2010 NCM: