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2014 (6) TMI 1070 - HC - Indian LawsAttachment of property of immovable properties - seeking an order of interim injunction restraining the Respondent/Defendant, his men, servants, agents or anyone acting on his behalf or claiming under him from in any manner alienating or encumbering his immovable properties - HELD THAT:- When the Respondent/Defendant has created 'Equitable Mortgage' with the Appellant/Plaintiff, by means of deposit of title deeds (which fact is denied by the Respondent/Defendant), then, this Court is of the considered view that the Appellant/Plaintiff cannot invoke either the ingredients of Order 38 Rule 5 of the Civil Procedure Code or the ingredients of Order 39 Rule 1 and 2 of the Civil Procedure Code, because of the simple reason that the Respondent/Defendant cannot be prevented from dealing with his property just because the suit is filed. As a matter of fact, the provisions of Order 38 Rule 5 of the Civil Procedure Code and Order 39 Rule 1 and 2 of the Civil Procedure Code are not to be resorted to either as a matter of routine or in a mechanical way. Suffice it for this Court to point out that the aim of Order 38 Rule 5 C.P.C. is not to convert an 'Unsecured Debt' is a Secured Debt. Furthermore, when the Respondent/Defendant is said to have created 'Equitable Mortgage' in favour of the Appellant/ Plaintiff, then, this Court is of the considered view that the Appellant/Plaintiff is not entitled to claim reliefs under Order 38 Rule 5 C.P.C. and Order 39 Rule 1 and 2 C.P.C. Appeal dismissed.
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