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Judgment
Lok Pal Singh, J
Since common question of facts and law are involved in these revisions, therefore, both the revisions are being decided by a common judgment and
order.
Civil Revision No.157 of 2019 has been preferred against the order dated 07.11.2019 passed by Civil Judge (S.D.), Kashipur, District Udham Singh
Nagar, in civil suit no.19 of 2018 whereas Civil Revision No.159 of 2019 has been filed against the order dated 07.11.2019 passed in civil suit no.18 of
2018. By the orders impugned, the applications moved by the respondent/plaintiff under Order XXXVIII Rule 5 of Civil Procedure Code, 1908
(hereinafter to be referred as the CPC) have been allowed and the revisionists/defendants have been directed to furnish security equivalent to the
value of suit claim.
Factual matrix of the case is that two suits being numbered as O.S. No.18 of 2018 and O.S. No.19 of 2019 were preferred by the
respondent/plaintiff in the court of Civil Judge (S.D.) Kashipur, District Udham Singh Nagar against the defendant/revisionist, seeking similar relief of
recovery of money in both the suits, inter-alia on the ground, that the plaintiff is a registered company. The plaintiff company wanted to purchase land
nearby its unit. Defendant Smt. Shalini Agarwal in O.S. No.18 of 2019 and defendant Km. Seema Chauhan in O.S. No.19 of 2019 were having lands
khasra no.207 admeasuring 1.936 hectare and khasra no.208 admeasuring 0.608 hectare in Village Nadehi respectively. In the west side of the lands,
as there was Chak road, the plaintiff showed its interest to purchase the lands from the defendants and Rs.1,35,00,000/- was fixed for khasra no.207
and Rs. 63,00,000/- for khasra no.208. The defendants assured to open the chak road and thereafter to enter into an agreement with the plaintiff, in
accordance with law. On the assurance given by the defendants for their respective piece of land, the plaintiff paid Rs. 20,00,000/- vide cheque
no.327060 on 25.01.2016 and Rs. 42,00,000/-through RTGS on 29.04.2016 to the defendant Smt. Shalini Agarwal, and to the defendant Km. Seema
Chauhan, he paid Rs. 5,00,000/- vide cheque no.327061 dated 25.01.2016 and Rs. 8,00,000/- though R.T.G.S. However, subsequently the defendants
expressed their inability to resolve the dispute of opening the chak road. As they could not fulfill their part of contract, the plaintiff requested to return
the earnest money but the defendants did not return the same. As such, the plaintiff sent a registered notice to the defendants through counsel which
was duly served upon the defendants. Inspite of the notice, when the defendants did not return the money to the plaintiff, the plaintiff constrained to
file the suits.
The revisionists/defendants contested the suits and filed their written statements in the suits stating that the plaintiff wanted to purchase land khasra
no.208 admeasuring 1.986 hectare from the defendant Smt. Shalini Agarwal and land khasra no.207 admeasuring 0.608 from defendant Km. Seema
Chauhan. In the written statements, the defendants denied any oral agreement between the parties. However, they stated that a memorandum of
understanding (hereinafter to be referred as ‘MOU’) dated 24.01.2016 was entered into between the parties, which was signed by the
plaintiff’s manager and the plaintiff has accepted the terms of said MOU. It was further stated that the plaintiff has failed to purchase the land as
per the MOU and thus the amount has been forfeited.
During the pendency of the suits, plaintiff moved applications under Order XXXVIII Rule 1 of CPC in both the suits stating therein that the plaintiff
has come to know that the defendants are trying to dispose off all their properties and intent to go out of the jurisdiction of the court, and if the
defendants succeeded in their attempt, then the recovery would be impossible. Hence, the plaintiff prayed that the defendants’ property, as
mentioned in the applications, be attached. The defendants filed objections to the said applications and stated that the plaintiff has failed to comply with
the terms of MOU dated 24.01.2016 and as such the plaintiff is not entitled for any relief. The trial court, treating the applications, as having being
moved under Order XXXVIII Rule 5 of CPC, and considering the different provision, by orders dated 30.07.2019, rejected the applications as not
maintainable, fixed the case for framing of issues. Subsequently, the plaintiff moved separate applications under Order XXXVIII Rule 5 of CPC dated
09.09.2019 in both the suits. In both the applications, it was stated by the plaintiff that the defendant is trying to dispose off her property so as to
abscond and leave the local limits of the jurisdiction of this court with an intention to avoid and obstruct to such a decree or recovery that may be
passed against her by this court. In such circumstances, the plaintiff prayed that the defendants be directed either to deposit money in the court or
other property sufficient to meet the claim of the applicant against her. The trial court, vide orders dated 15.10.2019, passed in the suits, granted
opportunity to the defendants to file objections to the said applications, with the observation that in case of non-filing of the objections, said applications
will be decided ex-parte. Despite opportunity, the defendants did not file objections to the applications, nor they appeared before the court, as such, the
trial court proceeded to hear the applications ex-parte, and accordingly by the impugned orders dated 07.11.2019 allowed the applications moved under
Order XXXVIII Rule 5 of CPC, looking to the facts and circumstances the case, as well as the conduct of the defendants. The trial court directed the
defendants to furnish security equivalent to the value of suits. Subsequently, consequent orders dated 19.11.2019 were passed for attaching the
property of the defendants in absence of furnishing the security.
Heard learned counsel for the parties and perused the entire record.
Learned counsel for the revisionists/defendants has submitted that the earlier applications moved by the respondent/plaintiff under Order XXXVIII
Rule 1 of CPC in the suits were dismissed by the trial court as not maintainable, but thereafter subsequent applications, seeking the similar relief, have
been allowed by the trial court. It is contended that the subsequent applications are barred by the principles of res judicata.
Learned counsel for the revisionists/defendants has vehemently argued that the court below has committed illegality in allowing the applications
moved under Order XXXVIII Rule 5 of CPC, inasmuch as, the respondent/plaintiff has not shown that his claim is bonafide and valid and that he has
strong prima facie case of his success. He would submit that the plaintiff, by moving an application under Order XXXVIII Rule 5 CPC, cannot
convert any in-secured debt into a secured debt. It is contended that any attempt made by the plaintiff to invoke the provisions of Order 38 Rule 5 as a
leverage for coercing the defendant to settle the suit claim should be discouraged. To buttress his submissions, learned counsel for the
revisionist/defendant would place reliance on the following judgments of the Hon’ble Apex Court:-
(i) Raman Tech. & Process Engg. Co. and another v. Solanki Traders, (2008) 2 SCC 302.
This case-law will be discussed by the Court in subsequent paragraphs.
(ii) Bakat Ali and another v. Badri Narain (D.) by L.Rs. (2009) 1 ARC 109
“7. Order XXI Rule 22 CPC culminates in end of one stage before attachment of the property can take place in furtherance of execution of
decree. The proceedings under Order XXI Rule 23 can only be taken if the executing Court either finds that after issuing notice, under Section XXI
Rule 21 the judgment-debtor has not raised any objection or if such objection has been raised, the same has been decided by the executing Court. Sub
rule (1) as well as sub rule (2) under Order XXI Rule 22, operates simultaneously on the same field. Sub rule (1) operates when no objection is filed.
Then the Court proceeds and clears the way for going to the next stage of the proceedings namely attachment of the property and if the Court finds
objections on record then it decides the objections in the first instance and thereafter clears the way for taking up the matter for attachment of the
property if the objections have been overruled. Whether the order is made under sub rule (1) or sub rule (2), it has the effect of determining the
preliminary stage before the attachment process is set in motion. In this background, the order of the Court to proceed with attachment on finding that
no objection has been raised also operates as an order deciding the preliminary stage of the execution proceedings and operates as if the judgment-
debtor has no objection to file. If thereafter, the judgment-debtor wants to raise an objection in the same proceedings in the absence of any
modification of order passed under Order XXI Rule 22 sub rule (1) or (2), he has to take recourse to get rid of the order by way of appeal. There is no
dispute and it has not been agitated that the order for proceeding by the judgment under Order XXI Rule 22 amounts to a decree under Section 47 of
CPC and it is appealable as a decree i.e to say it is not an appeal against the interim order but an appeal against the decree which is provided against
the final order. It means that at the different stages of the execution orders passed by the executing court have attained finality unless they are set
aside by way of appeal before the higher forum. Otherwise they bind the parties at the subsequent stage of the execution proceedings so that the
smooth progress of execution is not jeopardised and the stage which reached the finality by dint of various orders of the Order XXI, operates as res
judicata for the subsequent stage of the proceedings. Since the order passed at different stage itself operates as a decree and is appealable as such,
the same cannot be challenged in appeal against subsequent orders also, because appeal against an order passed under Order XXI Rule 22 does not
amount to appeal against order at initial stage, but amounts to a decree finally determining the question. That is why no appeal against orders made
under Order XXI has been provided under Order 43. In this background, where a judgment-debtor has an opportunity to raise an objection which he
could have raised but failed to take and allowed the preliminary stage to come to an end for taking up the matter to the next stage for attachment of
property and sale of the property under Order XXI Rule 23 which fell within the above principle, the judgment-debtor thereafter cannot raise such
objections subsequently and revert back to earlier stage of proceedings unless the order resulting in termination of preliminary stage which amounts to
a decree is appealed against and order is set aside or modified.
The principles of res judicata not only apply in respect of separate proceedings but the general principles also apply at the subsequent stage of the
same proceedings also and the same Court is precluded to go into that question again which has been decided or deemed to have been decided by it at
any early stage.â€
(iii) Ramadhar Shrivas and Bhagwandas, (2006) 62 ALR 360
“17. In our opinion, the learned Counsel for the appellant is also right in submitting that the rule of constructive res judicata applies to the present
case. The express ‘matter in issue’ under section 11 of the Code of Civil Procedure, 1908 connotes matter directly and substantially in issue
actually or constructively. A matter is actually in issue when it is in issue directly and substantially and a competent Court decides it on merits. A
matter is constructively in issue when it ‘might and ought’ to have been made a ground of defence or attack in the former suit. Explanation IV
to section 11 of the Code by a deeming provision lays down that any matter which ‘might and ought’ to have been made a ground of defence or
attack in the former suit, but which has not been made a ground of defence or attack, shall be deemed to have been a matter directly and substantially
in issue in such suit.
The principle underlying Explanation IV is that where the parties have had an opportunity of controverting a matter, that should be taken to be the
same thing as if the matter had been actually controverted and decided. The object of Explanantion IV is to compel the plaintiff or the defendant to
take all the grounds of attack or defence in one and the same suit.
In the case at hand, it is clear that in the earlier suit, the Court had recorded a clear finding that defendant-Bhawandas was neither the owner of
the property nor he could show any right as to how he was occupying such property except as a tenant of Hiralal. If Bhagwandas was claiming to be
in lawful possession in any capacity other than a tenant, he ‘ought’ to have put forward such claim as a ground of defence in those proceedings.
He ought to have put forward such claim under Explanation IV to section 11 of the Code but he had failed to do so. The doctrine of constructive res
judicata engrafted in Explanation IV to Section 11 of the Code thus applies to the facts of the case and the defendant in the present suit cannot take a
contention which ought to have been taken by him in the previous suit and was not taken by him. Explanation IV to section 11 of the Code is clearly
attracted and defendant Bhagwandas can be prevented from taking such contention in the present proceedings.
Per contra, learned counsel for the respondent/plaintiff has submitted that no prejudice has been caused to the revisionists/defendants by passing of
the impugned orders. He has further submitted that the impugned orders of attachment, being interlocutory orders, are not revisable, and therefore the
revisions are not maintainable. To buttress his submissions, learned counsel has placed reliance on the following judgments.
(i) Rajendran and others v. Shankar Sundaram and others, (2008) 2 SCC 724
“10. Concededly, the amount of loan was advanced by a cheque. The said cheque was drawn in the name of the partnership firm. Concededly
again, the appellants were the partners thereof at the relevant time, although an endeavour was made before the learned Single Judge to show that
they ceased to be so. Having regard to the fact that they purported to have retired from the partnership firm in the year 2001 and the transactions
herein between the parties are of the year 2000, prima facie the liability of the appellants could not have been ignored.
The application for attachment before judgment was filed by the plaintiff so as to protect his interest in the event the suit is decreed. The court
exercises, in such a situation, jurisdiction under Order 38 Rule 5 of the Code of Civil Procedure. The Division Bench of the High Court merely
directed the appellants herein to furnish security within the time specified thereunder. It was directed that only on their failure to do so, an order of
punishment of the second item on the schedule to the petitioner shall also be issued.
The appellants, in our opinion, are not seriously prejudiced thereby. The court while exercising its jurisdiction under Order 38 Rule 5 of the Code of
Civil Procedure is required to form a prima facie opinion at that stage. It need not go into the correctness or otherwise of all the contentions raised by
the parties. A cheque had been issued in the name of the firm. The appellants are partners thereof. A pronote had been executed by a partner of the
firm. Thus, even under the Partnership Act prima facie the plaintiff could enforce his claim not only as against the firm but also as against its
partners.â€
(ii) Mommanasaree Mandir v. Manisha Sarees, AIR 2002 Andhra Pradesh 66
“11. Having heard the elaborate submissions made by both the learned counsel, we are of the considered opinion that in the light of the several
facts and circumstances as can be revealed from the material on record, we are satisfied that the impugned order is in substantial compliance with the
provisions of Order 38 Rule 5 and Order 38 Rule 6 CPC and hence the impugned order does not suffer from any illegality.
The conduct of the parties has to be taken into consideration. Further, several transactions between the parties also clearly reveal that in the event
of the proper security not being furnished, it will be very difficult for the respondent-plaintiff to realize the amount from the appellant. While
considering the application for attachment before judgment under Order 38 Rule 5 CPC, the Courts are expected to look into the object of the
provision also. When the Court feels that the interest of the plaintiff has to be safeguarded, then necessarily in such circumstances, it is always better
to call upon the opposite party to give the necessary safeguard by furnishing security or any other complying with the terms of the decree which he
ultimately suffer at the time of disposal of the suit. Keeping in view the object and the purpose of Order 38 Rule 5 CPC, we are of the considered
opinion that the impugned order passed by the Court below is not liable to be interfered with on any count whatsoever much less on any illegality.
Before parting, even otherwise, the aspects pointed out by the appellant are only at the best aspects relating to the irregularity in the procedure and
such curable irregularities cannot affect the substantial rights of the parties. Further, some facts which clinch and stare at us are the admission of
transaction of sale of sarees by the respondent and purchase by the appellant, the admission made by the appellant that some amounts are due and the
issuance of cheques in settlement of the dues are bouncing of the same.â€
(iii) Arjun Singh v. Mohindra Kumar and others, AIR 1964 Supreme Court 993
“(13) It is needless to point out that interlocutory orders are of various kinds; some like orders of stay, injunction or receiver are designed to
preserve the status quo pending the litigation and to ensure that the parties might not be prejudiced by the normal delay which the proceedings before
the court usually take. They do not, in that sense, decide in any manner the merits of the controversy in issue in the suit and do not, of course, put an
end to it even in part. Such orders are certainly capable of being altered or varied by subsequent applications for the same relief, though normally only
on proof of new facts or new situations which subsequently emerge. As they do not impinge upon the legal rights of parties to the litigation the
principle of res judicata does not apply to the findings on which these orders are based, though if applications were made for relief on the same basis
after the same has once been disposed of the court would be justified in rejecting the same as an abuse of the process of court. There are other
orders which are also interlocutory, but would fall into a different category. The difference from the ones just now referred to lies in the fact that they
are not directed to maintaining the status quo or to preserve the property pending the final adjudication, but are designed to ensure the just, smooth,
orderly and expeditious disposal of the suit. They are interlocutory in the sense that they do not decide any matter in issue arising in the suit, nor put an
end to the litigation. The case of an application under O. IX. r. 7 would be an illustration of this type. If an application made under the provisions of
that rule is dismissed and an appeal were filed against the decree in the suit in which such application were made, there can be no doubt that the
propriety of the order rejecting the reopening of the proceeding and the refusal to relegate the party to an earlier stage might be canvassed in the
appeal and dealt with by the appellate court. In that sense, the refusal of the court to permit the defendant to ""set the clock back"" does not attain
finality. But what we are concerned with is slightly different and that is whether the same Court is finally bound by that order at later stages, so as to
preclude its being reconsidered. Even if the rule of resjudicata does not apply it would not follow that on every subsequent day on which the suit
stands adjourned for further hearing the petition could be repeated and fresh orders sought on the basis of identical facts. The principle that repeated
applications based on the same facts and seeking the same reliefs might be disallowed by the court does not however necessarily rest on the principle
of resjudicata. Thus if an application for the adjournment of a suit is rejected, a subsequent application for the same purpose even if based on the same
facts, is not barred on the application 'of any rule of res judicata, but would be rejected for the same grounds on which the original application was
refused. The principle underlying the distinction between the rule of res judicata and a rejection on the ground that no new facts have been adduced to
justify a different order is vital. If the principle of resjudicata is applicable to the decision on a particular issue of fact, even if fresh facts were placed
before the Court, the bar would continue to operate and preclude a fresh investigation of the issue, whereas in the other case, on proof of fresh facts,
the court would be competent, nay,, would be bound to take those into account and make an order conformably to the facts freshly brought before the
court.
(19) On this submission, which we might mention has been urged for the first time in this court, the first question that arises is whether the Court has
the inherent jurisdiction which learned counsel contends that it has. For the purpose of the discussion of the question in the context of the relevant
provisions of the Code, it is unnecessary to embark on any detailed or exhaustive examination of the circumstances and situations in which it could be
predicated that a Court has the inherent jurisdiction which is saved by s. 151 of the Civil Procedure Code. It is sufficient if we proceed on the
accepted and admitted limitations to the existence of such a jurisdiction.
It is common ground that the inherent power of the Court cannot override the express provisions of the law. In other words, if there are specific
provisions of the Code dealing with a Particular topic and they expressly or by necessary implication exhaust the scope of the powers of the Court or
the jurisdiction that may be exercised in relation to a matter the inherent power of the Court cannot be invoked in order to cut across the powers
conferred by the Code. The prohibition contained in the Code need not be express but may be implied or be implicit from the very nature of the
provisions that it makes for covering the contingencies to which it relates, We shall confine our attention to the topic on hand, namely applications by
defendants to set aside ex parte orders passed against them and reopen the proceedings which had been conducted in their absence. Order TX, r. 1
requires the parties to attend on the day fixed for their appearance to answer the claim of the defendant. Rule 2 deals with a case where the
defendant is absent but the Court from its own record is apprised of the fact that the summons has not been duly served on the defendant in order to
acquaint him with the proceedings before the Court. Rule 2 contains a proviso applicable to cases where notwithstanding the absence of service of
summons, the defendant appears. Rule 3 deals with a case where the plaintiff alongwith the defendant is absent when the suit is called on and
empowers the Court to dismiss the suit. Rule 5 deals with a case where the defendant is not served properly and there is default on the part of the
plaintiff in having this done. Having thus exhausted the cases where the defendant is not properly served, r. 6(1)(a) enables the Court to proceed
exparte where the defendant is absent even after due service. Rule 6 contemplates two cases: (1) The day on which the defendant fails to appear is
one of which the defendant has no intimation that the suit will be taken up for final hearing for example, where the hearing is only the first hearing of
the suit, and (2) where the stage of the first hearing is passed and the hearing which is fixed is for the disposal of the suit and the defendant is not
present on such a day. The effect of proceeding ex parte in the two sets of cases would obviously mean a great difference in the result. So far as the
first type of cases is concerned it has to be adjourned for final disposal and, as already seen, it would be open to the defendant to appear on that date
and defend the suit. In the second type of cases, however, one of two things might happen. The evidence of the plaintiff might be taken then and there
and judgment might be pronounced. In that case O. IX, r. 13 would come in. The defendant can, besides filing an appeal or an application for review,
have recourse to an application under O. IX, r. 13 to set aside the ex parte decree. The entirety of the evidence of the plaintiff might not be concluded
on the hearing day on which the defendant is absent and something might remain so far as the trial of the suit is concerned for which purpose there
might be a hearing on an adjourned date. On the terms of O. IX, r. 7 if the defendant appears on such adjourned date and satisfies the Court by
showing good cause for his non-appearance on the previous day or days he might have the earlier proceedings recalled"" set the clock back"" and have
the suit heard in his presence. On the other hand, he might fail in showing good cause. Even in such a case he is not penalised in the sense of being
forbidden to take part in the further proceedings of the suit or whatever might still remain of the trial, only he cannot claim to be relegated to the
position that he occupied at the commencement of the trial. Thus every contingency which is likely to happen in the trial vis-a-vis the non-appearance
of the defendant at the hearing 'of a suit has been provided for and O. IX, r. 7 and O. IX, r. 13 between them exhaust the whole gamut of situations
that might arise during the course of the trial. If, thus, provision has been made for every contingency, it stands to reason that there is no scope for, the
invocation of the inherent powers of the Court to make an order necessary for the ends of justice. Mr. Pathak however, strenuously contended that a
case of the sort now on hand where a defendant appeared after the conclusion of the hearing but before the pronouncing of the judgment had not
been provided for. We consider that the suggestion 'that there is such a stage is, on the scheme of the Code, wholly unrealistic. ln the present context
when once the hearing starts, the Code contemplates only two stages in the trial of the suit: (1) Where the hearing is adjourned or (2) where the
hearing is completed. Where the hearing is completed the parties have no further rights or privileges in the matter and it is only for the convenience of
the Court that O. XX, r. 1 permitts judgment to be delivered after an interval after the hearing is completed. It would, therefore, follow that after the
stage contemplated by O. IX, r. 7 is passed the next stage is only the passing of a decree which on the terms of O. IX, r. 6 the Court is competent to
pass. And then follows the remedy of the party to have that decree set aside by application under O.IX. r. 13. There is thus no hiatus between the two
stages of reservation of judgment and pronouncing the judgment so as to make it necessary for the Court to afford to the party the remedy of getting
orders passed on the lines of O. IX, r. 7. We are, therefore, of the opinion that the Civil Judge was not competent to entertain the application dated
May 31, 1958 purporting to be under O. IX, r. 7 and that consequently the reasons given in the order passed would not be res judicata to bar the
hearing of the petition under O. IX, r. 13 filed by the appellant.
Learned counsel for the respondent has vehemently argued that after passing of the impugned order, consequential orders have been passed by
the trial court in both the suits, for attachment of property of the defendant/revisionist vide orders dated 05.12.2019. It is submitted that the impugned
orders dated 07.11.2019 have now been merged into orders dated 05.12.2019, which have not been challenged by the revisionist/defendant in the
present civil revisions. Thus, the revisions have rendered infructuous and are liable to be set aside.
To this, learned counsel for the revisionists have submitted that even if the orders dated 05.12.2019 are not under challenge before this Court, the
Court is empowered to look into such orders. In this regard, he would place reliance on the judgment of Hon’ble Allahabad High Court rendered in
the case of Wipro Limited (M/s) Bakhtawar and another v. Baba Enterprises, (2000) 91 Allahabad High Court 579. He would refer paragraph 17
which is quoted as follows:-
“17. Learned counsel for the opposite party, however, contends that the order dated 9th September, 1998 has not been challenged by the
revisionists. But the challenge of the order dated 9th December, 1998 is also an order which refused to recall the order dated 9th September, 1998 and
as such the said order is very much within the scope and ambit of the revisional application. The challenge thrown to the order dated 9th December,
1998 is also a challenge to the order dated 9th September, 1998. Then again in a revisional application, when it is brought to the notice of the court, the
court is empowered to look into an order even if it is not challenged and set the things right when it appears that the court had exceeded its
jurisdiction.â€
Before any discussion, this Court thinks it proper to deal with the contention raised by learned counsel for the respondent to the effect that the
impugned orders of attachment, being interlocutory orders, are not revisable. Section 115 (Uttarakand amendment) of CPC would be relevant for the
purpose which is quoted hereunder:-
“115. Revision.- (1) A superior court may revise an order passed in a case decided in an original suit or other proceeding by a subordinate court
where no appeal lies against the order and where the subordinate court has
(a) exercised a jurisdiction not vested in it by law; or
(b) failed to exercise a jurisdiction so vested; or
(c) acted in exercise of its jurisdiction illegally or with material irregularity.â€
A perusal of the aforesaid Section makes it clear that Section 115 CPC applies to any case decided. The controversy with regard to the
expression ‘case decided’ was set at rest by the Hon’ble Apex Court in the case of S.S.Khanna vs. Brig. F.J. Dillon, Air 1964 Supreme
Court 497 , wherein it was held that the expression ‘case decided’ is a word of comprehensive importance; it includes civil proceedings other
than suits, and is not restricted by anything contained in the section to the entirety of the proceeding in a civil court. It was further held that to interpret
the expression ‘case decided’ as an entire proceeding only and not a part of a proceeding would be to impose restriction upon the exercise of
powers of superintendence which the jurisdiction to issue writs and the supervisory jurisdiction are not subject and may result in certain cases in
denying relief to an aggrieved litigant where it is most needed and may result in the perpetration of gross injustice. It was further held that there is no
such restriction placed upon the power of the High Court in the exercise of revisional jurisdiction as would limit the exercise of that power only to
cases where no appeal is competent from the final order passed in the suit or proceeding.
In the case at hand, allowing the applications moved under Order XXXVIII Rule 5 CPC has adversely affected the rights of the defendants and
has caused serious prejudice to them, inasmuch as under the orders impugned, they have to furnish security equivalent to the value of suit claim or in
the non-compliance of the same, their property would be attached by the court. Thus, applying the ratio of the judgment in S.S. Khanna’s case
(supra), this Court is of the considered view that the instant revisions are maintainable.
Reverting to the merits of the case, before going any further, it would be apt to discuss Rule 5 of Order XXXVIII of CPC, which is reproduced
hereunder:-
“5. Where defendant may be called upon to furnish security for production of property â€" (1) Where, at any stage of a suit, the Court is
satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed
against him,-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the
defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the
disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy, the
decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property so specified.
(4) If an order of attachment is made without complying with the provisions of sub-rule (1) of this rule such attachment shall be void.â€
A bare perusal of the aforesaid provisions make it abundantly clear that in order to call upon the defendant to furnish security for production of
property, the Court is supposed to satisfy itself that the plaintiff has successfully made out a prima facie case for a decree to be passed in his favour,
and that the defendant with intent to obstruct or delay the execution of any decree, is about to dispose off the whole or any part of his property or is
about to remove the same from the local limits of the jurisdiction of the Court. So far as the second condition that the defendant are intended to
obstruct or delay the execution of any decree, is concerned, the same has no relevance unless first condition is satisfied. Unless the Court is satisfied
that the plaintiff has a prima face case of success, the Court should refrain itself from invoking the provisions contained under Order XXXVIII Rule 5
of CPC.
Hon’ble Apex Court, in its various decisions, has considered the attachment before the Judgment as a very harsh remedy because it
substantially interferes with the defendants property rights before the final resolution of the over all dispute. In Raman Tech. & Process Engg. Co.
and another v. Solanki Traders, (2008) 2 SCC 302, Hon’ble Apex Court has held as under:-
“5. The power under Order 38 rule 5 CPC is a drastic and extraordinary power. Such power should not be exercised mechanically or
merely for the asking. It should be used sparingly and strictly in accordance with the Rule. The purpose of Order 38 Rule 5 is not to convert
an unsecured debt into a secured debt. Any attempt by a plaintiff to utilize the provisions of Order 38 Rule 5 as a leverage for coercing the
defendant to settle the suit claim should be discourage. Instances are not wanting where bloated and doubtful claims are realized by
unscrupulous plaintiffs by obtaining orders of attachment before judgment and forcing the defendants for out-of-court settlements under
threat of attachment.
A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him. Shifting of
business from one premises to another premises or removal of machinery to another premises by itself is not a ground for granting
attachment before judgment. A plaintiff should show, prima facie, that his claim is bona fide and valid and also satisfy the court that the
defendant is about to remove or dispose of the whole or party of his property, with the intention of obstructing or delaying the execution of
any decree that may be passed against him, before power is exercised under Order 38 Rule 5 CPC. Courts should also keep in view
principles relating to grant of attachment before judgment.
In view of the ratio of law propounded in Raman Tech (supra), every Court is supposed to satisfy itself that there is practical certainty of the
plaintiff's success, meaning thereby, that the plaintiff should show a very strong prima facie case and evidence in his favour of the plaintiff in respect
of claim of recovery of the amount and in respect of claim of attachment before judgment or security. The object of Order 38 Rule 5 CPC in
particular, is to prevent any defendant from defeating the realization of the decree that may ultimately be passed in favor of the plaintiff, either by
attempting to dispose of, or remove from the jurisdiction of the court, his movable. In this regard, it is obligatory on the part of the Court also to satisfy
itself that there is a reasonable chance of a decree being passed in the suit against the defendant, and only in such circumstances, after keeping in
mind all the pros and cons, such order of attachment should be passed by the court. This would mean that the court should be satisfied the plaintiff has
a prima facie case. If the averments in the plaint and the documents produced in support thereto, do not satisfy the court about the existence of a
prima facie case, the court should refrain from passing any order in favour of the plaintiff under Order XXXVIII Rule 5 of CPC.
In the case at hand, on perusal of the pleadings of the parties, it would reveal that the plaintiff has come up with a case that advance money was
paid to the defendants, and as per the oral agreement, the defendants had agreed to open the Chak road, but thereafter the defendants did not comply
with the terms of the oral agreement, whereas the stand of the defendants is that no oral agreement was entered into between the parties, rather a
memorandum of understanding was arrived at between the plaintiff and the defendants, which is paper no.47-C/2, which is also an unregistered
document. From the pleadings, the plaintiff has not shown that it has a strong prima facie case of success. Furthermore, there is no whisper in the
plaint wherefrom the plaintiff may prove that it has a chance of success of passing a decree in their favour for recovery of money. There is no
registered document on record to show that plaintiff has a prima facie case of passing a decree in its favour. The plaintiff, by moving the applications
under Order XXXVIII Rule 5 CPC, cannot make an attempt to convert an unsecured debt into a secured debt.
Insofar as question of constructive res judicata is concerned, this Court is of the view that the previous application filed by the plaintiff was for
attachment of the property which was dismissed by the Court on 30.07.2019, as not maintainable, observing that without praying for furnishing of
security by the defendant, the plaintiff has prayed to attach the property of the defendant. In such circumstances, the applications were dismissed as
not maintainable. Lower court record reveals that the orders dated 30.07.2019 were not challenged by the plaintiff at that point of time; rather the
plaintiff choose to prefer subsequent applications in both the suits with a prayer to furnish security by the defendants. By the impugned orders dated
07.11.2019, subsequent applications have been allowed in both the suits. Against these orders, when the defendants preferred instant civil revisions
before this Court, the plaintiff thereafter also filed a revision being Civil Revision No.27 of 2020 along with a delay condonation application before this
Court. Said revision has been dismissed by this Court vide judgment dated 10.08.2020, on the ground of laches. Whatever has been observed by the
trial court while dismissing the previous applications, it would be worth mentioning here that the said orders dated 30.07.2019 have attained finality.
Besides, by moving earlier applications under Order XXXVIII Rule 5 of CPC, the plaintiff sought larger relief, which had also covered the smaller
relief of furnishing of security. Thus, subsequent applications, seeking relief of furnishing security, are not maintainable and are barred by principles of
res judicata. Even otherwise, this Court has gone through the issue in hand and has held in preceding paragraphs that the plaintiff has not been able
to establish a strong prima facie case of its success, so as to obtain relief of either furnishing of security or attachment of the property of the
defendant. This being the position, the trial court has committed gross illegality in allowing the applications moved by the plaintiff under Order
XXXVIII Rule 5 of CPC, thereby directing the defendant to furnish security in both the suits. So far as the judgments cited by learned counsel for the
respondents are concerned, the same are distinguishable on facts and are, therefore, no help to the respondents.
As regards the contention of learned counsel for the respondent/plaintiff that the consequential order of attachment of property passed by the trial
court, is not under challenge before this Court, it is well settled that once main order is held to be illegal and is set aside, all consequential orders
automatically gets nullified. Reference may be made to Mangal Prasad Tamoli Vs. Narvadeshwar Mishra and others (2005) 3 SCC 422 ,wherein at
paragraph 15 it has been held as follows:-
“15. The trial court and the first appellate court had held that the suit for redemption brought by the plaintiff was premature and rightly dismissed it.
It is the High Court, by its judgment dated 18.1.1966 in Second Appeal No.3033 of 1958, which took an erroneous view that because of the
plaintiff’s advocate having stated that he would not seek delivery of possession before the stipulated time (26.1.1968), the suit could be continued.
It was on this wrong understanding of the legal position that the remand order dated 18.1.1966 came to be made by the High Court pursuant to which
the appeal and further proceedings continued. If this remand order was bad in law, then all further proceedings consequent thereto would be non est
and have to be necessarily set aside. That the appellants are entitled to urge this point even at this point of time, is supported by the authority of this
Court in Ganga Dhar.â€
Looking to the facts and facets of the case, instant civil revisions deserve to be allowed. Same are hereby allowed. Impugned orders dated
07.11.2019 passed in Civil Suit No.19 of 2018 and Civil Suit No.18 of 2018 are hereby quashed. Consequential orders dated 05.12.2019 passed in the
suits also stand quashed. As the suit is pending disposal since 2012, trial court is directed to make every endeavour to decide the suit as expeditiously
as possible.
Lower court record be sent back.