P L D 1975 Lahore 17 (PLP)

(d) Wooden furniture consisting of two Sofa Sets, 4 Tables, 12 Chairs, 2 Almirahs and 10 other small articles-worth about Rs. 500. (e) Electrical equipments including 2 Radios, 4 Ceiling Fans and one Table Fan-worth about Rs. 1,000. (f ) Cutlery worth about Rs.

100. The said security has, however, not been furnished by the petitioners as according to them a sum of Rs. 1,66,726.95 is due to them from the respondent-Bank, on account of the goods pledged by petitioner No. 1 with the respondent-Bank, which have not been delivered back to the petitioners in spite of the fact that the amount for which they were pledged has been paid back by them. According to them the present market value of the said goods is more than Rs. 1,50,000.00. It was alleged by the petitioners in their reply to the application that the same was not maintainable as the amount. mentioned above, was due from the Bank to them on account of unaccounted for cash, deposits, cheques realized, false entries of clearance of goods lying in trust with the Bank. According to the petitioners they have already lodged complaint in regard to alleged defalcation of their accounts made by the respondent in the competent Court of law which is pending adjudication. The suit for the recovery of Rs. 35,605.34 with future interest was filed on 4-11-1969 alongwith an application under Order XXXVIII, rule 5, C. P. C. for attachment before judgment of the property, as mentioned therein. The only ground as given in the application by the respondent-Bank, is that the property as mentioned therein is about to be disposed of by the petitioners with intent to obstruct and delay the execution of the decree likely to be passed against them. The petitioners in their reply have denied that the property, as mentioned in sub-para. (b) of para. 3 of the application belongs to them. According to them the said property is occupied by petitioner No. 1 as a tenant. The ownership of the car as mentioned in sub-para. `e' is also denied. Objections have also been raised in their reply with regard to the evaluation of the property, mentioned in the application to the effect that the Amrit Dhara Building which is quite known to the residents of Lahore situated at Railway Road, Lahore, has been undervalued to be worth about Rs. 1,12,

000. It is a double-storeyed building covering many kanals of land with dozens of rooms and balls. Similarly two Sofa Sets, 4 Tables, 12 chairs, 2 Almirahs and 10 others small articles have been shown to be worth about Rs.

500. Electrical equipments including two Radios 4 Ceilirg Fans and one Table Fan have been shown to be worth about Rs. 1,000.00. Similarly Cutlery whose details have not been given has been shown to be worth about Rs. 10.00. The learned Civil Judge has passed the impugned order in a mechanical manner without seeing as to whether there is any ground for attachment before judgment and as to what is the market value of the properties sought to be attached. According to the learned counsel for the petitioners Amrit Dhara Building which has been transferred permanently to petitioner No. 1 is worth more than Rs. 3,00,000.00 and the other property and articles, as mentioned in the application, have also been grossly undervalued. His apprehension in this regard may be genuine. I am not in a position to correctly evaluate the property in question but it is possible that Amrit Dhara Building may be worth more than what has been claimed to be its price by the res pondent. It is really strange as to how the entire property as given in the application can be attached for the suit amount of about Rs. 35,OJ0.00. It was the duty of the learned lower Court to assess the market value of the property involved, himself, and if he a as satisfied that its value was more than the suit amount then any of the properties equivalent to the value of the suit amount could be attached if otherwise permitted by law. It was further brought to his notice that the Amrit Dhara Building was already subject-matter of the writ petition pending adjudication in the High Court and status quo order had been passed therein. The specific objection was taken in this regard in the reply of the petitioners to the application of the respondent. This aspect of the matter has not been adverted to at all as to whether in view of the status quo order passed by the High Court any order for attachment of the same property was necessary to be passed or not. Further it was also brought to his notice that the Bungalow No. 22 situated in Model Town, Lahore as well as Car bearing No. LEF-5968 did not belong to the petitioners but without any proof having been furnished by the respondent to the contrary, the said properties were attached.

2. The application in question was entertained on 4th of November 1969, and notice in the same was issued to the petitioners for 18th of November 1969. On the said date the petitioner No. 1 appeared on his behalf as well as on behalf of petitioner No.

2. He was handed over the copy of the application for the purpose of filing reply and for arguments thereon for 6th of December 1969. When reply to the application was filed the case was adjourned for arguments to 19th of December 1969. After hearing the arguments on the said date the case was adjourned to 15th of January 1970, for announcement of the order. In spite of the fact that certain important objections were raised in the reply, the petitioners were not given opportunity to lead evidence in support of their contentions and no necessary issue was framed in regard to that.

3. Apart from that the main question to be seen in this case is as to whether in view of the allegations made by the respondent-Bank in its application, the property in question can be attached before judgment or not. The provisions of Order XXXVIII, rule 5, C. P. C. are quite drastic in their nature as the defendant can be put to great disadvantage in case application is accepted under the said provision at the initial stage of the case. The Court should be very careful in applying the said provision against a party and should be fully satisfied on the basis of the proper material on the record before taking any action in this regard. If the application filed under this provision alongwith an affidavit, does not contain a specific allegation with regard to the alienation of the property to be made during the pendency of the suit with intent to obstruct or, delay the execution of the decree no such order can be passed under the said provision. Unless intention of the defendant to obstruct the execution of the decree is proved mere attempts to dispose of the property would not be a sufficient ground to pass any order under this provision. The Court has to be satisfied that the transfer of the property is going to be made after the institution of the suit with the said intention. Such allegation has to be proved positively as vague allegation to this effect will not be a sufficient ground under the law. This view gets support from Badanand Rai and others v. Nabokumar Singh A I R 1938 Pat. 161, Nowroii Pudumjee Siradar v. The Deccan Bank Ltd. A I R 1921 Bom. 69, Durya Das v. Nalin Chandra Nandan etc. A I R 1934 Cal. 694, Badri Prasad v. Chokhey Lal A I R 1926 All. 406, Nawab and others v. Charagh A I R 1936 Lah. 195.

4. The facts of the case as reported in A I R 1938 Pat. 161 are that the suit was instituted on 18th of July 1936, and the application for attachment before judgment was made on the same day stating that certain transfers had been made by the defendant 1 and that the plaintiff had heard from Ram Parsad Singh that the defendant was prepared to alienate through collusive sale and benami rehan etc. his remaining properties. Notice in the application was issued and the parties adduced evidence in support of their contentions. The application was granted by the learned trial Court on the ground that there were sufficient circumstances in the case which could lead one to suspect that the defendant had every intention of dis posing of his properties. It was proved in the evidence that the three transfers of the properties given as ground for attachment took place before the institution of the case. With regard to the future intention of the defendants about the alienation of their properties there was only a statement in the affidavit which referred to an information received from the person mentioned above, that the defendant was going to transfer the properies. It was held that the evidence with regard to future alienation of the property was vague. The plaintiff had not stated as to which properties were going to be transferred and under what circumstances. It was further held that the bare reading of the provision of Order XXXVIII, rule 5, C. P. C. would show that before this provision could come into play the Court had to be satisfied that transfers were going to be made by the defendant after the suit had been filed and that too with the object of obstruct ing the execution of the decree. It was urged before their Lordships that the conduct of the parties before the institution of the suit could be taken into account for the purpose of coming to a conclusion whether intention of the defendant was fraudulent or not. It was held that apart from that there must be a transaction subsequent to the filing of the suit in order to show that the defendant was disposing of the property with the intention of obstructing the execution.

5. It is significant to notice the wording of sub-rule (1) of rule 5 of Order XXXVIII. The words used in the said provision are as follows:- (a) is about to dispose of the whole or any part of his property? (b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court ? The use of the language as made clearly shows that it pertains to future transaction and not to the past one. It is correct that the past conduct of a party may be taken into considera tion but in order to apply the provision of Order XXXVIII, rule 5, C. P. C. in a proper manner, it is essential to prove the alienation of the property C during the pendency of the suit with the intention of defeating the purpose of the decree. In the absence of that no cider under the said provision can be passed.

6. An application under the said provisions was filed in the case reported in A I R 1936 Lah. 195 alleging therein that the defendants intended to misappropriate their property at Lahore with the object that the plaintiffs might not get anything in case decree was passed in their favour. It was further alleged that the defendants had already misappropriated the furniture etc. belonging to them. The learned trial Court accepting the application attached the property on the basis of an affidavit filed alongwith that. It was held by the High Court that the affidavit on which the Court below acted was wholly incompetent and was not in law an affidavit at all. Reliance in this respect was placed upon Kanshi Ram v. Hindustan National Bank Ltd. through Madan Gopal A l R 1928 Lah.

376. It was further held that the Court should be fully satisfied on the basis of proper material on the record before it takes any action under the said provision. The order passed by the trial Court in accepting the application under the provision was set aside.

7. This view further gains strength from Mohiuddin Molla v. The Province of East Pakistan etc. P L D 1962 S C

119. The facts of the case are that one Birendra Mohan Ghose was granted by the Government a lease of the properties for a period of 20 years with effect from 15th of April 1934 along with a right of renewal, on the expiry of the lease, on assessment of fresh rent. On the 1st November 1935, the lessee transferred all his rights in the land to Smt. Surabala Ghose. The Government accepted her as its tenant. She in turn transferred a part of the properties to S. C. Phatak on 31st of March 1947, and the Government recognised him as its tenant. This very property was the subject-matter of the case before the Supreme Court. The remaining part of the properties held by Smt. Surabala Ghose was transferred to Abdul Subhan, respondent No. 3 on 18th of January 1952. However, before this transfer was effected the appellant before the Supreme Court, Mohiuddin Molla, filed a suit for the recovery of money on 10th of July 1951, and obtained a compromise decree against him on 21st of December 1951. According to the terms and condi tions of the decree the decretal amount was to be paid in three instalments payable in June 1952, January 1953 and June 1953, and the decree-holder was entitled to get the decree executed only if the judgment-debtor failed to pay the two instalments. S. C. Phatak entered into an agreement to sell the property on 20th of May 1952 i.e. before any instalment became due to be paid by him to the decree-holder. Mohiuddin Molla applied to the Court on 14th of June 1952 when the decree had not become executable in terms of the compromise for the attachment of the property owned by S. C. Phatak alleging that he, the judgment-debtor was taking steps to sell his property and leave for India permanently, and if the property was not attached, there might not be anything left for the decree-holder. The learned trial Court at this attached the property. It is admitted that S. C. Phatak sold his property on 10th of September 1952, in pursuance of the agreement for sale, as mentioned above. Thereafter long litigation ensued between the parties and the case was ultimately taken up by their Lordships of the Supreme Court in appeal against the judgment and decree of the High Court of East Pakistan dated 16th of June 1958, in Appeal No. 758 of 1967. It was held that the Courts have inherent jurisdiction to preserve the property of the judgment-debtor in the circumstances of the case in order to show that it may be available for realisation of the decretal amount. It was found that the case before the Supreme Court was quite strong one for issuing the order of attachment as decree had been passed in favour of the appellant and the allegations before the Court were that the judgment-debtor was taking steps to dispose of the whole of his property and was leaving for India. It was further observed that if the said facts were correct, the proper course was to attach the property and protect the decree-holder.

8. The above facts would show that the judgment-debtor in that case had entered into an agreement for the sale of his properties before an application for attachment of his properties was filed, after the decree had been passed in favour of the appellant. It was also proved on record that the judgment-debtor after disposing of the property was planning to leave for India. In the circumstances it was held that it was a fit case for issuing an order of attachment so that the property of the judgment debtor may be protected for satisfying the decree, passed against him.

9. In the present case, as discussed above, there is only a vague allegation on the part of the respondent-Bank that the petitioners are about to dispose of their property in order to obstruct and delay the execution of the decree likely to be passed against them. Nothing has been brought on record to show that the petitioners after institution of the suit entered into an agreement for sale of their property or had actually sold any part of the same. Even if it be so, the point for consideration would be as to D whether the whole of the property or any part of the same would be quite sufficient to satisfy the decretal amount or not. A vague type of affidavit sworn in by an officer of the respondent cannot be relied upon for the purpose of an order to be passed under Order XXXVIII, rule 5, C. P. C. The learned trial Court has held the statement of accounts filed by the respondent-Bank to be correct in view of the certificate issued in this regard by the respondent. It may be so, but the main question is as to whether in the circumstances of the case and the material available on record, the impugned order attaching the property can be passed or not. The above discussion would show that no such order can be passed in law on the basis of vague allegations as made by the respondent.

10. It has been urged by the learned counsel for the respondent that if the impugned order is set aside then the petitioner No. 1 would dispose of his entire property and there would be left nothing to satisfy the decree likely to be passed against him. It has not , been denied that the property No. 46, Railway Road, Lahore, known as Amrit Dhara Building, at present the subject-matter of the writ petition filed by petitioner No. 1 against the Settlement Department is worth more than at least Rs. One Lakh and the order maintaining status quo has been passed in that case meaning thereby that respondent No. 1 cannot dispose of that property pending the decision of the writ petition. Since the suit amount is about Rs. 35,000.00, therefore, for the present it would be sufficient property for the purpose of satisfying the decretal amount in case decree is passed against the petitioners.

11. For the aforesaid reasons, the civil revision is accepted with costs and the impugned order dated 15th of January 1970 is hereby set aside. K. B. A. Petition accepted.