TMI Blog1951 (1) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... t is signed by the purchaser namely Maneck Gazi. The document also contains the salesman's signature. The petitioner states that the defts. made payments from time to time returned a portion of the goods there is now due a sum of Rs. 7,927-10-0 from the defts. which they have failed to pay. It is stated that the defts. are Muhammadan businessmen they used to carry on a small business at their residence at village Raghbkati, Basirhat, in the district of 24 Parganas. The village is just on the border of Hindustan Pakistan . It is stated that they have stopped their business at Raghabkati have started a small business in Pakistan . It is further alleged that the defts. approached one Shyamapada Upadhyay, a Zemindar land-holder, residing at village Sarapool, in Basirhat, very near the village of Raghabkati, a few weeks ago, requested him to purchase the immovable properties belonging to the defts., particulars whereof are set out in the petition, for a sum of Rs. 8000., I have before me an affidavit of Shyamapada, Upadhyay, he not only confirms that the defts. wished to sell the properties, but he also says that they told him that they wished to sell away their prop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... roperty or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear show cause why he should not furnish security. . . . 6. (1) Where the deft. fails to show cause why he should not furnish security or fails to furnish the security required, within the time fixed by the Court, the Court may order that the property specified, or such portion thereof as appears sufficient to satisfy any decree which may be passed in the suit, be attached.... The necessity for orders under the rule arises almost daily among litigants. As will be found from a plain reading of this rule, the mere disposal or removal by the deft. of any of his property is not sufficient, such disposal or removal must be with the intention to obstruct or delay the execution of any decree that may be passed against the deft. It is not always easy to establish the intention of the debtor, the cases must necessarily depend on their own facts. No hard or fast rule has ever been found as to what facts would be sufficient to entitle the creditor to get an order under this rule. It has been rightly pointed out that the powers given under this rule are wide, unless cauti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rcised sparingly with the utmost caution. A Civil Court should be thoroughly satisfied before it proceeds under that section, that the deft. is really disposing of his property with intent to obstruct or delay the execution of any decree that may be passed against him. We find here not the slightest; pretence for any such supposition .... what possible reason have we for supposing that the deft. is doing this for the purpose of obstructing or delaying the execution of any decree that may be passed against him? If Courts were to use this section in the manner contended by the pltf., they would become the instrument of the greatest oppression. ... In Jai Prakash Narain Singh v. Basanta Kumari Debi 15 I. C. 604 Mookerji J. agreed with this decision of Garth J., stated as follows: The Court should be fully satisfied before it proceeds under that section, that the deft. is really disposing of his properties with the intent to obstruct or delay the execution of any decree that may be passed against him. In this case, the pltf. was the mortgagee his allegation was that the mortgaged property would not be sufficient, that unless an order for attachment before judgmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of their properties with intent to obstruct or delay the execution of any decree that the pltf. may obtain. An attempt to secure debts already incurred by executing a mortgage in respect of them does not necessarily indicate an intention to obstruct or delay the execution of a decree which has not yet been passed such a mortgage will not in a case when the value of the properties far exceeds the amount of the said debts as well as the claim in the suit, necessarily obstruct or delay the execution, for the pltf. will be able to put up the properties to sale subject to the mortgage that may be executed realise the decretal dues. In the case of Sikharja Nath v. Janki Nath 36 C. W. N. 746, an order for attachment was made by the Court below because the mortgagors were obstructing the mortgage sale, properties subject to the mortgage were being allowed to get into arrears for Govt. revenue. It was alleged that there was gross neglect of the debtors themselves which would lead to great obstacle in the way of the pltfs. realising their dues, Rankin C.J. stated as follows : You cannot get an order under Order 38 for gross neglect ........ In the same way he (meaning the low ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere. 8. In the case of Nowroji Pudumjee v. Deccan Bank Ltd. AIR1921Bom69 , the pltfs., were voluntary liquidators of the Deccan Bank, filed the suit against the defts. to recover losses incurred by the Bank owing to the alleged misconduct negligence of the deft. McLeod C. J. said as follows : Before an order of attachment before judgment can be made, the Court must be satisfied by affidavit or otherwise that the deft., with intent to obstruct or delay the execution of any decree that may be passed against him, is about to dispose of the whole or any part of his property. It is not disputed that deft. 1 had agreed to sell two items of his Immovable properties, in the Poona district, but merely because he had attempted to sell some of his immovable properties, while proceedings against him are pending, it does not follow that he is disposing of the property with intent to obstruct or delay the execution of any decree that may be passed in the suit ....... It may be quite possible that the deft. had an intention to defraud the pltf. But there is nothing in the mere agreement to sell this portion of the first deft.'s property from which it can be presumed that he actual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The power given to the Court to attach a deft.'s property before judgment, is never meant to be exercised lightly or without clear proof of the existence of the mischief aimed at in the rule. To attach a deft.'s property before a deft.'s liability has been established by a decree, may have the effect of seriously embarrassing him in the conduct of the defence, as the properties could not be alienated even for the purpose of putting him in funds for defending the suit, which may eventually prove to have been entirely devoid of merit. Such a power is only given when the Court is satisfied not only that the deft. is about to dispose of his properties or to remove it from the jurisdiction of the Court, but also that his object in so doing is to obstruct or delay the execution of any decree that may be passed against him, and so deprive the pltf., if successful, of the fruits of victory. In the present case, the learned Subordinate Judge has not stated that she does not believe the defts. when they say that they have no intention of alienating any portion of the property under attachment, All he says is that this explanation is not sufficient. It seems to me that once you ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... im to enforce the contract. The learned Subordinate Judge drew the inference that the deft. was about to dispose of his properties with an intention to obstruct or delay the execution of the decree which might be passed against him. Mookerji J., stated as follows : The facts as they appeared in the proceedings of the Court below, have not been challenged, we are not prepared to say that the Subordinate Judge has erroneously estimated their bearing. But it has been suggested by the learned Vakil for the appellant that in order to bring the case under Section 483, Civil P. C., it must be proved that the attempt at alienation was made after the commencement of the action. This contention is in our opinion based upon a narrow construction of Section 483. It is open to the Court to look to the conduct of the parties immediately before the suit to examine also the surrounding circumstances from these to draw an inference as to whether the deft. is about to dispose of his property if so with what intention. In the case of Ram Sarup v. Chiranjilal (1941) A.P.L.J. 30, the deft. had transferred 80% of his properties also changed the name of the firm. It was held that an att ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mstances or in acute financial embarrassment, is a relevant circumstance, but not by itself sufficient. (10) That in the case of running businesses, the strictest caution is necessary the mere fact that a business has been closed, or that its turnover has diminished, is not enough. (11) Where however the deft. starts disposing of his properties one by one, immediately upon getting a notice of the pltf.'s claim, /or where he had transferred the major portion of his properties shortly prior to the institution of the suit was in an embarrassed financial condition, these were grounds from which an inference could be legitimately drawn that the object of the deft. was to delay and defeat the pltfs'. claim. (12) Mere removal of properties outside jurisdiction, is not enough, but where the deft. with notice of the pltfs'. claim, suddenly begins removal of his properties outside the jurisdiction of the appropriate Court, without any other satisfactory reason, an adverse inference may be drawn against the deft. Where the removal is to a foreign country, the inference is greatly strengthened. (13) The deft. in a suit is under no liability to take any special ca ..... X X X X Extracts X X X X X X X X Extracts X X X X
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