2008 PLP 1637 (CLC)

The appellant, being aggrieved with the impugned order, dated 13-12-2005 passed by learned Single Judge in Suit No.824 of'2005, has resorted to file High Court Appeal under Order XLIII, rule 1 of the Code of Civil Procedure whereby C.M.A. No.5131 of 2005 for grant of temporary injunction and C.M.A. No.5132 of 2005 for attachment before judgment were dismissed. During the course of arguments learned counsel for appellant has contended that the impugned order is not in conformity with law, the Court had inherent power to preserve the property for realization of the decretal amount from the respondent in a suit filed for recovery of the rent payable by the respondent being tenant arising out of rent proceedings initiated by the appellant against the respondent, as a consequence thereof executing Court had delivered the possession of the demised premises. It is urged that after filing of the suit the appellant could not be in a position to execute the decree against the respondent, therefore, the attachment of the respondent's property in all fairness would meet the ends of justice. It is explicitly pointed out that the principle recognized under Order XXXVIII, rule 5 of the Civil Procedure Code empowers the Court to attach the property of the contesting defendant in a case where the decree is likely to be passed in the suit which may be satisfied from the sale of the attached property. It is next pointed out that during the course of the proceedings at one stage the respondent's counsel feebly agreed, to furnish surety in the sum of Rs.9,00,000 after seeking instructions from his client, later not materialized. Learned counsel for respondent had categorically denied the assertions of the appellant's counsel, contended that during the pendency of the appeal the custody of the subject machinery was delivered to the respondent, admittedly at this juncture respondent is not bound to furnish surety as the machinery belonged to the respondent, such suit is also sub judice before the competent Court of law. We have considered the arguments advanced at Bar. It is recognized principle of law that the Court has power to attach the property in favour of the appellant and the jurisdiction of the Court to attach the property of respondent arises only when the Court has power to grant the relief. In any event, if the appellant succeeds in his designs to procure judgment in terms of the decree sought in Suit No.824 of 2005 the respondent would be liable to protect the rights of the appellant in exercise of the power conferred by the Code of Civil Procedure. When confronted with the above position learned counsel for respondent has agreed for the disposal of the appeal on the premises that pending disposal of the suit respondent would either deposit the title documents of a property as a security with the Nazir of this Court or shall furnish bank guarantee within one month. Learned counsel for appellant seems to be satisfied from the above statement, therefore, the impugned order is hereby set aside with a direction to the respondent to furnish document of immovable property as security/bank guarantee in the sum of Rs.9,00,000 with the Nazir of this Court within one month which shall meet the ends of justice, with the above observations High Court Appeal No.318 of 2005 is hereby allowed with no orders as to cost. H.B.T./I-15/K Appeal allowed.