@JUDGMENTTAG-ORDER
PA. Mohammed, J.@mdashThe plaintiff in a suit for realisation of money is the revision petitioner. The revision is directed against the order dismissing a petition for attachment of property before judgment filed under Order XXXVIII Rule 5 of the Code Civil Procedure. The petitioner filed the suit-to recover an amount of Rs. 82,000/- being the value of the gold ornaments which the respondent had taken from him. It was apprehended that the properties of the respondent would be alienated before the judgment and therefore the petitioner filed an application under Order XXXVIII Rule 5 for attachment of the property of the respondent. Initially the trial court passed an order of attachment on condition that the attached property can be released on furnishing security. The respondent has raised objections to the said order. The court below after hearing both sides came to the conclusion that the allegations contained in the affidavit are not sufficient enough to order attachment. The application was therefore rejected.
2. Under sub-rule (1) Rule 5 of Order XXXVIII, the court has power to direct the defendant in a suit to furnish security as may be sufficient to satisfy the decree to be passed against him. This power can be exercised by the court only when it is satisfied by affidavit or otherwise that the defendant is about to dispose of the whole or any part of his property, or is about to remove the whole or any part of his property from the local limits of the jurisdiction of the court. Such disposal or removal must be with an intention to obstruct or delay the execution of any decree that may be passed against him in the suit. In the absence of such intention the court cannot direct the defendant to furnish security.
3. What is available before this Court in this case is an affidavit filed by the petitioner alleging that the respondent has executed documents in respect of the petition-scheduled property in the name of his children. It is further alleged that he is trying to alienate those properties in which case the petitioner could not realise the decree amount, if he succeeds in doing so. The case of the respondent, on the other hand, is that he has no title to the properties in question and that he has no intention to sell or otherwise dispose of the properties.
4. It is brought to my notice by Learned Counsel for the respondent the decision of this Court in Rai Premchand & others v. P.K. Ahamed & co. (1982 KLT 294) wherein it is said: "Vague and general allegations that the defendant is about to dispose of the property cr remove it beyond the jurisdiction of the court unsupported by particulars, would not be sufficient compliance with the rule". Reliance was placed on a decision of the Madras High court in V.K. Nataraja Gourider V. S.A. Bangaru Reddiar (AIR 1965 Madras 212). The above decision of this Court was considered by the Division bench in Pareed master V. Antony (1987 (2) KLT 649) and distinguished it on facts. There is nothing to indicate that the Division bench has disapproved the ratio of the said decision. Of course, the Division Bench has pointed out certain pragmatic problems as thus:
"The court while construing these provisions should keep in mind the pragmatic difficulties of a plaintiff. The defendant if he had intention to defeat or delay the execution of the decree that may be passed against him would be disposing of the property in a clandestine manner. The plaintiff would not be in a position to know all the details of that transaction."
However, for that reason the Division bench did not say that the requirement provided in sub-rule (1) of Rule 5 can be dispensed with by the courts. The Division bench, in fact, observed:
"It is true that mere allegation of the plaintiff is not sufficient to order an attachment before judgment."
5. The decision of Sinha, J. (as he then was) in Premraj Mundra V. Md. Ma neck Gazi & others (AIR 1951 Calcutta 156)was relied on by the Division Bench as well as the single Bench of this Court in the aforesaid decision. The decision in Premraj Mundra''s case surpassingly enumerates the circumstances under which an attachment would be made. One of the circumstances delineated therein is this:
"That the mere fact of transfer is not enough, since nobody can be prevented from dealing with his properties simply because a suit has been filed. There must be additional circumstances to show that the transfer is with an intention to delay or defeat the plaintiffs claim. It is open to the court to look to the conduct of the parties immediately before suit, and to examine the surrounding circumstances, and to draw an inference as to whether the defendant is about to dispose of the property, and if so, with what intention. The court is entitled to consider the nature of the claim and the defence put forward:
The decision in
"A man is not debarred from dealing with his property because a suit has been filed against him. Otherwise, in every case in which a suit is brought against a man, if during the pendency of the proceedings he sells some of his property, that would be at once a sufficient ground to satisfy the court that he is disposing of his property with intent to defraud the plaintiff. Clearly there must be additional circumstances before the Court can be satisfied that such an intention exists."
Therefore the allegation in this case that the respondent has executed documents in the name of his children in respect of the properties in question is not a circumstance which would bolster the grant of attachment. Apart from the paucity of materials in regard to the executed documents the affidavit does not characterise that such action was tainted with intention to obstruct or delay the execution of decree.
6. Reliance was placed on the decision in N. Pappammal V. L. Chidambaram (AIR 1984 Mad 70) wherein it is observed:
"It is incumbent that the plaintiff should state precisely the grounds on which the belief or apprehension is entertained that the defendant is likely to dispose of or remove the property. It may even be necessary in some cases to give the source of information and belief. A mere mechanical repetition of the provisions in the Code or the language therein without any basic strata, of truth underlying the allegation or vague and general allegations that the defendant is about to dispose of the property or remove it beyond the jurisdiction of the court totally unsupported by particulars would not be sufficient compliance with the first part of 0.38 R. 5(1) C.P.C."
In Bank of India v. M/s National Tile Work Industries (AIR 1989 Delhi 60) the court observed:
"It is in its very nature an extraordinary jurisdiction and has to be exercised sparingly and strictly in accordance with procedure prescribed by the Code. There must be some definite evidence on these points and not mere vague allegations. The plaintiff must also prove a prima facie case in his favour. The approach of this Court has essentially to be very cautious and not casual or routine like."
7. Sub-rule (4) of Rule 5 proclaims that if an order of attachment is made without complying with the provisions of sub-rule (1), such attachment shall be void. That would mean the observance of the provisions contained in sub-rule (1) is imperative and the court has no power to dispense with the compliance of those provision in order to say that the requirements contained in the said provision are complied with, there must be cogent and explicit material which would satisfy the court to decipher that the defendant had an intention to obstruct or delay the execution of any decree that may be passed against him, in the absence of which, the disposal or removal of the property by him may not be objectionable. Intention is distinct from knowledge; but both are different states of human mind. The intention of the defendant ought to be judged from his deeds and not from his mental awareness of certain facts. The defendant may have certain ideas but that by itself do not constitute intention. Therefore what is required is specific acts of the defendant which directly or indirectly obstruct or delay the execution of any decree that may be passed against him. The mere vague or evasive allegations in the affidavit do not serve the purpose. Rule 5 is pre-eminently a provision intended for the protection of the person whose property is sought to be attached before judgment sub-rule(4) was inserted in Rule 5 as per the provisions contained in the CPC Amendment Act 104 of 1976. There was a divergence of opinion between High courts as to whether an attachment made before judgment without complying with the procedure specified in Rule 5 is nullity or is voidable. In order to resolve this conflict of views, sub-rule (4) was inserted so as to make it clear that if an order of attachment is made without complying with the provisions of sub-ruled), such attachment shall be void. Therefore the provisions contained in sub-rule (1) of Rule 5 shall be complied with stricto sensu before effecting attachment of properties of the defendant before judgment.
8. As far as the present case is concerned, the affidavit filed by the petitioner does not contain specific actions of the respondent leading to obstruction or delay in execution of the decree. What is alleged, as pointed out herein before, is that the defendant is attempting to alienate the properties. The allegations are vague and evasive in nature and there is no definite case as to the source of information. From these allegations it is difficult for this Court to hold that the defendant had an intention to obstruct or delay the execution of the decree and therefore the properties were liable for attachment before judgment. Thus there is failure to comply with the provisions contained in sub-rule(1) of Rule 5 which forbids the remedy sought for by the petitioner by way of attachment before judgment. The court below in this case has examined the question in a properly instructed manner. I have no reason to disagree with the conclusion of the court below. The C.R.P. is accordingly dismissed. No order as to costs.
