Virender Kumar Chaturvedi & Anr vs Shashi Awasthi

Jyotsna Rewal Dua, J

An application moved by the plaintiffs under Order 38 Rule 5 of the Code of Civil Procedure (CPC) for attachment of 1/12th share of the non-applicant/defendant from the land comprised in Khasra No.604, 1/12th share from the land comprised in Khasra No.592, share of the applicant in the land comprised in Khasra No.1280/1456/ 904 and entire land comprised in Khasra Nos.2143/584 and 2157/611, situated in Mohal Grauru, Tehsil Jogindernagar, District Mandi, H.P., was dismissed by the learned Trial Court on 28.03.2023, thereby compelling the applicants/plaintiffs to institute the present petition.

Heard learned counsel on both sides.

Facts:-

3(i). A civil suit was instituted by the petitioners/ plaintiffs for recovery of Rs.83,29,497/- alongwith interest pendent lite and future interest till actual realization. Gist of the plaint was that the defendant had approached the plaintiffs for taking over a petrol pump being run by the defendant. The offer was accepted by the plaintiffs. Sale consideration was fixed at Rs.1,50,00,000/-. The plaintiffs transferred an amount of Rs.83,29,497/- on different dates to the defendant. The defendant did not perform his part under the agreement. Therefore, the civil suit was instituted by the plaintiffs for recovery of Rs.83,29,497/- alongwith interest. The defendant filed his written statement denying plaintiffs’ claim.

3(ii). The civil suit was initially instituted by the plaintiffs before this Court, which was registered as Civil Suit No.150 of 2021. Plaintiffs moved an application under Order 38 Rule 5 CPC, bearing OMP No.639 of 2021, seeking to attach the above described property of the defendant. Vide order dated 14.12.2021, the non-applicant/defendant was restrained from changing the nature, title and possession of the aforesaid property. He was also restrained from transferring, encumbering the said property in any manner or creating any third party right over the said property till the next date of hearing. The defendant was also directed to show cause as to why his share in the property, i.e. land comprised in Khasra Nos.604, 592, 1280/1456/904, 2143/584, 2157/611, situated in Mohal Grauru, Tehsil Jogindernagar, District Mandi, H.P., be not attached before the judgment. It is an admitted position that the aforesaid order continued to operate even though the civil suit was transferred to the Court of learned District Judge, Mandi on account of enhancement of pecuniary jurisdiction.

3(iii). The application under Order 38 Rule 5 CPC was dismissed by the learned District Judge on 28.03.2023. Learned Court was of the view that the application filed by the plaintiffs/applicants was vague. It was not stated as to when and in whose presence, the non-applicant/ defendant had proclaimed to dispose of his property. The application did not mention the source of information. Learned Trial Court held that there was insufficient material to conclude that the defendant intended to dispose of or remove his property. For these reasons, the application was dismissed.

In the aforesaid background, the plaintiffs have instituted the present petition, assailing order dated 28.03.2023.

Alongwith the petition, the petitioners/plaintiffs have also placed on record copy of Mutation No.3575, attested on 27.03.2023, to the effect that some portions of the land in question have been transferred by the non-applicant/defendant in favour of his wife by way of family arrangement. The attestation of mutation, prima-facie, reflects that apprehension of the petitioners/plaintiffs was proved to be correct as the respondent/defendant (non-applicant) had transferred some portion of the suit land in favour of his wife even during the currency of restraint order that was passed on 14.12.2021 in OMP No.639 of 2021.

In view of the above discussion, this petition is disposed of by granting liberty to the petitioners/plaintiffs to move a fresh application under Order 38 Rule 5 CPC before the learned Trial Court. The said application shall be decided by the learned Trial Court in accordance with law without being prejudiced by the observations made in the impugned order dated 28.03.2023.

The petition stands disposed of in the above terms, so also the pending miscellaneous application(s), if any.