CR No.3094 of 2011 (O&M) IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CR No.3094 of 2011 (O&M) Decided on: June 03, 2011. Gurdial Singh son of Shri Babu Ram. .. Petitioner VERSUS Smt.Raj Rani Sandhu wife of Jagdish Singh Sandhu and others. .. Respondents * * * CORAM: HON'BLE MR.JUSTICE M.M.S.BEDI 1. Whether reporters of local papers may be allowed to see the judgment? 2. Whether to be referred to the Reporter? 3. Whether the judgment should be reported in the Digest? * * * PRESENT Mr.Sudeep Mahajan, Advocate, for the petitioner. M.M.S. BEDI, J. (ORAL) The plaintiff-petitioner has filed this petition under Article 227 of the Constitution of India, aggrieved by the order dated 07.03.2011, by virtue of which, an application filed under Order 38 Rule 5 CPC, read with Section 151 CPC, for attachment of the property of defendant-respondent No.1, before attachment, has been dismissed by the trial Court. Counsel for the plaintiff-petitioner has contended . . . 1 CR No.3094 of 2011 (O&M) that vide judgment dated 11.01.2010, passed by the Civil Judge (Jr.Divn.), Hoshiarpur, in case Gurdial Singh Vs. Ashok Kumar and another, it has been held that defendant-respondent No.1, has played fraud wherein a decree has been passed against defendant- respondent No.1. It has been claimed that defendant-respondent No.1, has already absconded the local limits of jurisdiction of this Court and has gone to London, as such, in case the property owned by him is sold during pendency of the suit for recovery, a great prejudice will be caused to the plaintiff-petitioner as such, the property in the name of the defendant in Rectangle No.216, Khasra No.5, measuring 7 kanals 7 marlas, in the name of the defendant be attached. Counsel for the appellant has submitted that the trial Court has dismissed the application for attachment before judgment by adopting an absolutely whimsical reason that respondent No.1 being resident of England cannot sell the property and that nothing has been aroused suspicion in the mind of the Court that defendant with an intention to obstruct the execution of the decree was about to dispose of all or any part of the property. With the assistance of counsel for the petitioner, I have carefully gone through the plaint filed in a suit for recovery of ` 11,35,200/- with interest, on the ground that on 08.08.2000, the plaintiff had visited London and defendant No.1 had told the plaintiff- petitioner that he was having one draft dated 07.07.2000 for a sum of ` 5,67,600/-, standing in the name of one Ashok Kumar drawn on . . . 2 CR No.3094 of 2011 (O&M) State Bank of India, Faridabad and that he further told the plaintiff- petitioner that Ashok Kumar owed this amount to him but since defendant No.1, was not visiting India in near future, therefore, if this amount was not withdrawn, defendant-respondent No.1, would not be able to receive the amount from Ashok Kumar. The plaintiff had allegedly taken the draft. The amount had been deposited in the account of the plaintiff. The plaintiff had withdrawn sum of ` 4 lacs from the account and sent the same through cheque dated 19.09.2001 to Jagdish Singh Sandhu, defendant No.1, at his address at London. The plaintiff had claimed the said amount. In an application under Order 38 Rule 5 CPC, filed by the plaintiff- petitioner, the plaintiff had pleaded that the defendant is aware of the decree which is going to be passed against him in near future and with an intention to obstruct and delay the execution of the decree which is going to be passed against him, he is trying to dispose of the property measuring 7 kanals 7 marlas, which would defeat the rights of the plaintiff. The defendant had taken up a plea in the reply that the property mentioned in the application did not vest in the respondent. Counsel for the petitioner has contended that the jamabandi EX.P3, indicates that the property has been purchased by defendant No.1, from Raj Kaur and in the jamabandi for the year 2003-2004, the ownership of defendant No.1, is recorded. I have heard the counsel for the petitioner and carefully gone through the contents of the plaint as well as the . . . 3 CR No.3094 of 2011 (O&M) application for attachment of the property of defendant No.1, before decree. Counsel for the petitioner had drawn the attention of this Court to an order dated 29.09.2009, passed in the case, by virtue of which a similar application under Order 38 Rule 5 CPC, for attachment had been disposed of directing defendant No.1, to furnish security for a sum of ` 13 lacs and place the same at the disposal of the Court failing which the land of defendant-respondent No.1, would be attached. It is pertinent to observe here that after earlier application under Order 38 Rule 5 CPC, having been disposed of on 29.07.2009, a fresh application under Order 38 Rule 5 CPC, has been again filed without making a reference to the adjudication of earlier application under Order 38 Rule 5 CPC. Without expression of any opinion whether the order dated 29.07.2009, giving an opportunity to the defendant- respondent to show cause in accordance with law, it is sufficient to observe that the second application under Order 38 Rule 5 CPC, is not maintainable and in case the plaintiff wanted to seek the execution of order dated 29.07.2009, he can file a separate application subject to its maintainability. Even otherwise, it is settled principle of law that the object of invoking Order 38 Rule 5 CPC, is no doubt to safeguard the interests of the plaintiffs, if the Court is satisfied that ultimately even if a decree is going to be obtained by the plaintiff, he will not be able to realise the fruits of the decree. The . . . 4 CR No.3094 of 2011 (O&M) conditions specified in Order 38 Rule 5 CPC, have to be satisfied before a Court passes an order for attachment of the property before decree. In this concern, an order under Order 38 Rule 5 CPC, is an extra ordinary relief which can be granted only in appropriate cases where the Court finds a strong prima facie case in favour of the plaintiff and on satisfaction that the defendant is likely to defeat the decree in future as and when it is passed. There should be some material before the Court to arrive at a conclusion that the defendant is about to dispose of the whole or any part of the property. In view of plaintiff having not produced any material for the satisfaction of the Court in that aspect, the application stood rightly dismissed. No ground is made out for interference. Dismissed. (M.M.S.BEDI) JUDGE June 03, 2011. rka . . . 5