1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR. WRIT PETITION NO. 3143 OF 2007 (M. Sagar Chinnayya .v. Smt.Akila Begum Saud Akhtar Khan and others) Office Notes, Office Memoranda of Coram appearances, Court's orders or directions Court's or Judge's Orders and Registrar's orders. Shri D.V. Chauhan, Advocate for the petitioner. Shri S.V. Manohar, Advocate for the respondent Nos.1 to 3. CORAM : B.R. GAVAI, J. 31ST JANUARY, 2008. Heard the learned Counsel appearing on behalf of the respective parties. By way of present petition, the petitioner challenges the order dated 07.07.2007 passed by the learned Civil Judge, Senior Division, Nagpur below Exh. 63 in Special Civil Suit No.266/2000 thereby rejecting the application filed by the present petitioner under Order 38 Rule 5 of the Code of Civil Procedure. The plaintiff has filed a suit against the original defendant of whom present respondents are legal heirs for recovery of certain amount. It is the case of the petitioner that certain work of Public Works Department was in fact executed by him in the name of the deceased-defendant. It is submitted that the said amount was paid by the Public Works Department to the 2 defendant which, in turn, was agreed by the defendant to be paid to the plaintiff. During the pendency of the suit, the defendant died and as such legal heirs were brought on record. During the pendency of the suit, an application under Order 39 Rules 1 and 2 and an application under Order 38 Rule 5 came to be filed. In so far as application under Order 39 Rules 1 and 2 is concerned, the same still pends before the learned trial Court. In so far as application under Order 38 Rule 5 is concerned, the same is rejected. Hence the present petition. Shri D.V. Chauhan, the learned Counsel appearing on behalf of the petitioner submits that the learned trial Court has grossly erred in rejecting the application. He submits that voluminous documents were produced on record to fortify the claim of the petitioner that the respondents were disposing of the property so as to frustrate the execution of the decree that may be passed in favour of the petitioner. He further submits that as a matter of fact, there was an admission on record by the respondents that the property has been sold out. He submits that, in these circumstances, the learned trial Court ought to have passed an order under Order 38 Rule 5 attaching the property of the respondents. In the alternative, he 3 submits that at least the learned trial Court ought to have called the respondents to furnish security so that the interest of the plaintiff could have been safeguarded. Shri S.V. Manohar, the learned Counsel appearing on behalf of the respondents, submits that the provisions of Order 38 Rule 5 are drastic in nature. He submits that unless a strong pria facie case is made out and unless it is pointed out that the defendants were likely to dispose of the property so as to frustrate the decree that may be passed in favour of the plaintiff, the provisions of Order 38 Rule 5 are not invoked. He relies on the judgment of the Apex Court in the case of Raman Tech. and Process Engineering Company and another .v. Solanki Trades (reported in 2007(13) SCALE 419) in support of this proposition. He further submits that in accordance with the personal law that governs the respondents i.e. Muslim Law, the debt of the original defendant can be satisfied from the property of the respondents only to the extent of the property that they inherit from the original defendant. He submits that in so far as the self acquired property or the property gifted by any other person is concerned, the same cannot be brought for execution of the decree that may be passed for recovery of the debt of the original defendant. In support of this proposition, 4 he relies on the judgment of the Apex Court in the case of Mohammad Sulaiman .v. Mohammad Ismail and others (reported in AIR 1966 SC 792). The present petition arises out of an order under Order 38 Rule 5. Interference in the trial Court's order would be permissible only if it is found that the view taken by the learned trial Court is either an impossible or a perverse view. It would not be permissible for this Court to take another view only because it is found that there are two views possible and other view appears to be more appropriate to this Court. The learned trial Court, upon appreciation of the material before it, relying on the judgments of the Apex Court, has found that the powers under Order 38 Rule 5 can be exercised by the Court in very exceptional circumstances and with great cautious. The learned trial Court has also found that it is the duty of the plaintiff to prove that the conditions enumerated in Rule 5(1)(a) and (b) of Order 38 of CPC exist so as to invoke the jurisdiction to pass an order under Order 38 Rule 5. The learned trial Court, upon appreciation of the material, has found that there was nothing on record to show that the defendants with a mala fide intention were likely to dispose of the property so as to frustrate execution of the decree that may be passed in favour of the plaintiff. 5 In so far as the other contentions raised by the learned Counsel appearing on behalf of the respective parties are concerned, I do not find it appropriate to go into the merit of the same as any observation touching to the merits of the matter, may prejudice the case of the parties before the learned trial Court. In that view of the matter, I am not inclined to go to the rival contentions on merits. However, no infirmity or perversity can be found in the findings recorded by the learned trial Court. In the result, the writ petition is dismissed. Taking into consideration that the suit is of the year 2000, the learned trial Court is directed to expedite the trial and dispose of the same as far as possible within a period of nine months from today. JUDGE *rrg.