H.R. Krishnan, J.
This is an application by the defendant in a money suit based on two pro-notes which have been admitted, from the order of the Civil Judge affirming the interim attachment before judgment under Order 33, rule 5, Civil Procedure Code. The suit itself had been filed in 1953 and seems to have reached the stage at which the judgment is to be delivered, which would have been delivered, but for the fact that the record has been sent for in course of this miscellaneous appeal. The questions for decision are, firstly, whether it is merely a case of the plaintiff''s bare apprehension that the defendant is going to dispose of his properties with the purpose of frustrating the execution of the decree that the plaintiff might obtain; secondly, whatever the finding on merits of the intention to dispose of the property and the purpose of frustrating the decree, the plaintiff might obtain, whether the attachment before judgment was justified in view of the undertaking the defendant had given when he borrowed the money:-
I will not sell any immovable property till repayment of the loan and if I do, you may stop me from thus transferring it.
The facts of the case are simple and at this stage practically common ground. As long ago as 1946, the defendant borrowed money by three pro-notes from the plaintiff, out of which, the debt on two of the pro-notes is still outstanding. At that time, he executed another agreement stating that so long as the money was not repaid, he would not transfer any of his immovable properties and if he did, the plaintiff could take steps to stop him from doing so. What exactly would be the legal shape in which the plaintiff could, if at all, enforce the agreement is a question with which we are not directly concerned here. But it shows the intention of both the parties that all the immovable properties of the defendant should be available to the plaintiff if it became necessary for him to realise the debt by process in a law Court. Anyway, the matter went on with some acknowledgments and satisfaction of one of the pro-notes, till ultimately the suit was filed in 1953 for Rs. 7,200 and interest on the two pro-notes. Immediately before the filing of the suit, the defendant had actually sold out three out of the seven houses, which was all the immovable property that he had. He states that he applied the money for the satisfaction of one of the pro-notes; but there is no evidence that the entirety was so applied and in any event, this was without the knowledge and permission of the plaintiff-creditor. Simultaneously with the plaint, the plaintiff prayed that the four remaining houses of the defendant might be attached under Order 38, rule 5, because the defendant was trying to dispose them of with a view to frustrating the execution of the decree that the plaintiff might obtain in the suit, and he had no other property from which he could satisfy the decree, and these in spite of his earlier agreement. There was an ad interim attachment, but after notice to show cause, the attachment was made final. During the show cause proceedings, the trial Court had expressly invited the defendant to give security for the claim in the suit which is only a fraction of what he asserts is the value of the houses. He declined to do so.
The defendant''s case here is that the conditions requisite for an order of attachment had not been fulfilled and the trial Court was in error. Strangely enough, the memorandum does not refer to the defendant''s own undertaking that all the houses should be available to this creditor in case he has to go to a law Court or that the defendant himself had disposed of three of the houses against the agreement.
On behalf of the defendant-appellant, case-law has been cited, viz., the rulings reported in
Here, both the conditions regarding the course of conduct and the purpose have been satisfied. The suit was brought in 1953 but the debt was going on from 1946 onward. Between 1950 and 1952, the defendant sold away three out of seven of his houses which is not an inconsiderable share. The plaintiff does concede that the defendant has got some movable property and a small business, but strangely enough, the defendant asserts that he has got next to nothing other than the four houses attached. But it is common ground that there is nothing by way of immovable property outside the four house''s now attached under Order 38, rule 5. Originally, the immovable property consisted of seven houses and the defendant has himself mentioned in his agreement that he would not sell them till the plaintiff''s claim had been satisfied, and the plaintiff might take steps to stop him from doing so. The sale was just before the suit; but not so long before as to be unconnected. In fact, the defendant was aware of the utter dependence of the plaintiff on these houses for the realization of his money. One can say that the defendant had persuaded the plaintiff to give him the loan by promising to keep the houses with himself and not to transfer them.
This takes us to the purpose of the transfer. The agreement referred to is not one creating a charge or mortgage on the houses. It might even be that the agreement as agreement may not be enforceable or only enforceable in a round about manner by bringing a suit for injunction. Be that as it may, the defendant had solemnly promised to keep the houses with himself so that it might be possible or, at any rate, easy for the plaintiff to realize his claim. But he sells them one after the other; the only inference possible is that the sales were with a view to making things difficult for the plaintiff. Having found three houses go out of the hands of the borrower, the plaintiff comes with the suit. The course of conduct shows that unless some brake is applied the defendant might dispose of one or more of the remaining houses making it altogether impossible for the plaintiff to realise his dues. Attaching of movable properties is very difficult and in fact, movable properties might disappear far more quickly from the hands of a judgment-debtor. Whatever might have been the position in the absence of an agreement such as the one quoted, the fact of the agreement shows that the disposals of the houses were on a system and with a purpose. The defendant has absolutely nothing to explain in regard to this agreement except the very general suggestion that the plaintiff might bring a suit for injunction; but that is not the real question. The real question is a course of conduct and of the purpose.
In the result, I find that the appeal is without substance and dismiss it with costs and pleader''s fee payable by the appellant to the respondent according to rules.
