CIVIL REVISION NO.6047 OF 2007 :{ 1 }: IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH DATE OF DECISION: MAY 01, 2008 Harvinder Singh .....Petitioner VERSUS Sarwan Singh and another respondents CORAM:- HON'BLE MR.JUSTICE RANJIT SINGH 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? PRESENT: Mr. Rajesh Bhateja, Advocate, for the petitioner. Mr. Joginder Singh, Advocate, for the respondents. **** RANJIT SINGH, J. Harvinder Singh, defendant, has filed this revision against the order, requiring him to furnish security in the sum of Rs.18,54,000/-, failing which his property as mentioned in the application moved under Order 38 Rule 5 CPC is to be attached. The dispute between the petitioner and the respondents-plaintiff relates to an agreement for sale of land measuring 44 Bigas 3 Biswas, for which the petitioner had paid a sum of Rs.12,50,000/- as earnest money. Subsequently, the petitioner showed his inability to purchase CIVIL REVISION NO.6047 OF 2007 :{ 2 }: the land and asked for refund of the earnest money. When the petitioner did so, the respondents expressed his difficulty saying that the money was not readily available with him. The respondents had sought time for making the payment. The agreement to sell, available with the petitioner, was handed over to the respondents and he was asked to furnish some security for payment of the amount of Rs.12,50,000/-. The respondents thereafter issued two blank cheques out of their joint account. It is then pleaded that sum of Rs.12,50,000/- was returned and the agreement was cancelled on 2.5.2006. The blank cheques, given as security, were asked to be returned, which the petitioner promised but lateron got these encashed. Thus, the petitioner has allegedly withdrawn a sum of Rs.18 lacs from the account of the respondents, leading to filing of the suit for recovery. On the other hand, the case of the petitioner is that the respondents had backed out of the agreement and the matter was compromised when the petitioner agreed to take back the earnest money alongwith the damages of Rs.5,50,000/-. Accordingly, two cheques for sum of Rs.18 lacs were issued and encashed and the original agreement was returned to the respondents. In the original agreement, it was only mentioned that sum of Rs.12, 50,000/- was executed instead of Rs.18 lacs and hence, he had denied the liability to pay this amount. The respondents have, thus, filed an application under Order 38 Rule 5 CPC, seeking attachment of the property, leading to passing of the impugned order. Learned counsel for the petitioner submits that the trial CIVIL REVISION NO.6047 OF 2007 :{ 3 }: Court has passed the impugned order while over-looking the provisions of Order 38 Rule 5 CPC. The counsel submits that Court has directed the petitioner to furnish security or in alternative to attach the property on the mere allegation of the respondents that the petitioner is selling the property. He had not provided any sufficient basis in this regard which could have made the Court to pass the impugned order. It is submitted that provisions of Order 38 Rule 5 CPC can be invoked only when a strong case on facts is made out and not on the basis of facts as are available in the present case. On the other hand, counsel appearing for the respondents would say that the present revision even is not maintainable as the impugned order is appealable one. To substantiate his plea, he would submit that application though is moved under Order 38 Rule 5 CPC but the wording of the impugned order shows that it is made while invoking the provisions of Order 38 Rule 6 CPC. He, thus, submits that the impugned order would be appealable. He further says that except for this property, there is no security, which would be available for execution of a decree as and when passed against the petitioner and hence, the order of attachment can not be faulted. It is noticed that there is no viable material placed by the respondents on record to show that the petitioner is in the process of disposing of his property in any manner. There is no material placed on record to indicate that this is the only property which the petitioner owns and that there would be any difficulty in executing the decree if and when, the suit is decreed. I am also not impressed with the CIVIL REVISION NO.6047 OF 2007 :{ 4 }: argument advanced by the counsel for the respondents that revision is not maintainable. Once the respondents had filed application under Order 38 Rule 5 CPC and the order is passed, it would be under the said provisions and it can not be termed to be an order under Order 38 Rule 6 CPC merely because the order has directed attachment of property in the alternative to security. An attachment order is yet to be made and would follow only if the petitioner fails to furnish security. The petitioner has been directed to furnish security and in the alternative his property is to be attached. Since there is no evidence of the fact that the petitioner is either in the process of disposing of this property or intending to otherwise alienate the same, the order of attachment or for providing security merely on the apprehension of the party was not required to be made. The impugned order can not be sustained and the same is set-aside. To balance the equity, it would be appropriate to direct that the petitioner would inform the Court as and when he intends to alienate the property for which he had entered into this agreement to sell with the respondents. The present revision petition is accordingly disposed of. May 01, 2008 ( RANJIT SINGH ) khurmi JUDGE