The purpose of securing his appearance is to secure the claim of the plaintiff himself and that is why the proviso provides that to avoid the execution of arrest warrant, the defendant can pay to the officer entrusted with the execution of the warrant any sum specified in the warrant. The said proviso does not mean that the Court itself cannot direct the deposit of entire sum to the extent of claim of the plaintiff while issuing the warrant under Order 38 Rule 1 C.P.C. itself. Moreso when the application under Order 38 Rule 5 C.P.C. filed by the plaintiff was also pending before the Court and the said application was also disposed of by the Court by the same order, no water tight compartment can be taken between these two applications, particularly, when the Court was faced with the situation that during the process of service of summons, the defendant had already alienated the suit property on 27.10.2008. This might have naturally raised a suspicion in the mind of the Court that unless the claim of the plaintiff is sufficiently secured, the decree may remain unsatisfied. Thus, in order to secure the claim of the plaintiff, if the Court below has directed deposit of security to the full extent of claim of the plaintiff, no valid exception can be taken to the same. 1
1. This writ petition is directed against the order dtd.24.3.2009 passed by the learned court below while deciding the application under Order 38 Rule 5 C.P.C. and order 38 Rule 1 C.P.C. read with Section 151 C.P.C. filed by the plaintiff.
2. The learned court below has directed by the impugned order that since the defendant has already put in appearance in the court, the Court is not issuing any arrest warrant while disposing of the application under Order 38 Rule 1 C.P.C., but at the same time, the defendant within one month should deposit security for a sum of SBSWP NO.3456/2009- SHYAM SUNDAR SONI V/S MITHU LAL : JUDGMENT DTD.9.2.2010 2/7
Rs. 9,33,350/- against the probable decree which may be passed by the Court in the civil suit instituted for recovery of the said sum by the plaintiff - respondent. In the case of default of deposit of said security, the defendant shall undergo civil imprisonment and thus, the Court decided both the applications under Order 38 Rule 1 and Order 38 Rule 5 C.P.C.
3. The defendant - petitioner filed this writ petition challenging the said order. Mr. Suresh Shrimali, learned counsel appearing for the defendant - petitioner urged that the suit was instituted on 17.10.2008 and the application under Order 38 Rule 5 C.P.C. was filed by the plaintiff on 20.10.2008. However, still by 15.11.2008, service on defendant could not take place and summons were returned unserved on 15.11.2008 in which next date was fixed on 2.1.2009. The learned counsel for the defendants submitted that the defendant's counsel put in appearance before the Court below on 2.1.2009. He further submitted that the property which was sought to be attached had already been sold by the defendant on 27.10.2008 and therefore, the same is not hit by Order 38 Rule 5 C.P.C. and could not be attached by the court below. He further submitted that the purpose of Order 38 Rule 1 C.PC.. is to only secure the appearance of the defendant in a civil suit and therefore, the learned trial Court could not direct the deposit of security for entire decreetal sum of Rs.9,33,350/- by the impugned order while disposing of the SBSWP NO.3456/2009- SHYAM SUNDAR SONI V/S MITHU LAL : JUDGMENT DTD.9.2.2010 3/7
application under Order 38 Rule 1 C.P.C. He submitted that since no attachment had been ordered of the said property prior to 27.10.2008 and arrest warrant for securing such the claim of the plaintiff under Order 38 Rule 5 C.P.C. was not issued, there was no question of learned trial Court directing the defendant - petitioner to furnish the security for entire sum of Rs.9,33,350/- and since no attachment had been ordered, the defendant could not be directed to be arrested for want of deposit of such security for entire decreetal sum. He, therefore, prayed for quashing of the impugned order of the learned trial Court. He relied upon the decision of Madras High Court in the case of V. Balakrishnan V/s T.M. Gowreishan and anr. Reported in AIR 2001 Madras 20, in which despite undertaking given by the respondent - defendant not to alienate the suit property, but since the suit property was already mortgaged and it was also known to the plaintiff - applicant and mortgagee brought the property for sale and the respondents - defendants have not received any money from mortgagee or from purchasers, the respondents cannot be said to have flouted undertaking given by them and no warrant of arrest could be issued against the respondents - defendants.
4. On the other hand, Mr. J.K. Bhaiya, learned counsel appearing for the respondent - plaintiff urged that both the applications were pending and both have been disposed of by common order and the purpose of order 38 Rule 1 and Order 38 Rule SBSWP NO.3456/2009- SHYAM SUNDAR SONI V/S MITHU LAL : JUDGMENT DTD.9.2.2010 4/7
5 C.P.C. is to secure the presence of the defendant in the Court and also to secure the claim of the plaintiff by attachment before the judgment, in case of apprehension of the defendant leaving the jurisdiction of the Court or absconding or there is apprehension that he may dispose of the property in question leaving the claim or the decree which may be passed by the court unsatisfied. He, therefore, urged that in the presence case, the process server's report dtd.7.11.2008 by one Sh. Radha Kishan Calla clearly noted that summons were taken by him on 24.10.2008, but the defendant Shyam Sundar Soni was not at his residence and his wife was available there, but she refused to take the summons and therefore, the summons were returned unserved. He urged that thus, the wife of the defendant and thus the defendant also came to know of filing of the suit on 24.10.2008 itself and since disposal of the property in question took place thereafter on 27.10.2008, the learned court below felt justifiably to secure the claim of the plaintiff to direct the defendant to deposit the security for a sum of Rs.9,33,350/-. Since the defendant had already put in appearance before the court below, there was no question of issuing warrant of arrest for securing his presence in the Court under Order 38 Rule 1 C.P.C. He, therefore, submitted that the order, in effect, amounts to an order under Order 38 Rule 5 C.P.C. and notwithstanding the fact that no attachment had been ordered by the Court below, the court below could direct the defendant to deposit the security to secure the claim of the plaintiff. SBSWP NO.3456/2009- SHYAM SUNDAR SONI V/S MITHU LAL : JUDGMENT DTD.9.2.2010 5/7
5. Having heard the learned counsels and in view of the facts obtaining before this Court and analysis of the Order 38 Rule 1 and Order 38 Rule 5 C.P.C. , this Court is satisfied that the learned Court below cannot be said to have committed any error in passing the impugned order dtd.24.3.2009. The provisions contained in Order 38 Rule 1 and Order 38 Rule 5 C.P.C. appears to be very clear that where the Court apprehends that the defendants may avoid process of Court or obstruct or delay the execution of any decree, which may be passed against him in future and in the process may abscond or may alienate his property so as to leave the decree, if any, which may be passed against him by the trial Court unsatisfied, to secure such decree and to secure the interest of the plaintiff, the Court may direct deposit of security to the extent considered appropriate by it. To secure the attendance of the defendant, the Court may even issue warrant of arrest and to avoid such arrest, proviso to Order 38 Rule 1 C.P.C. clearly stipulates that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.
6. The contention of the learned counsel for the petitioner - defendant that such deposit of sum to the extent of claim of the SBSWP NO.3456/2009- SHYAM SUNDAR SONI V/S MITHU LAL : JUDGMENT DTD.9.2.2010 6/7
plaintiff could only be ordered after the warrant of arrest was issued under Order 38 Rule 1 C.P.C. and in no other circumstances, with respect, is misconceived. The purpose of securing his appearance is to secure the claim of the plaintiff himself and that is why the proviso provides that to avoid the execution of arrest warrant, the defendant can pay to the officer entrusted with the execution of the warrant any sum specified in the warrant. The said proviso does not mean that the Court itself cannot direct the deposit of entire sum to the extent of claim of the plaintiff while issuing the warrant under Order 38 Rule 1 C.P.C. itself. Moreso when the application under Order 38 Rule 5 C.P.C. filed by the plaintiff was also pending before the Court and the said application was also disposed of by the Court by the same order, no water tight compartment can be taken between these two applications, particularly, when the Court was faced with the situation that during the process of service of summons, the defendant had already alienated the suit property on 27.10.2008. This might have naturally raised a suspicion in the mind of the Court that unless the claim of the plaintiff is sufficiently secured, the decree may remain unsatisfied. Thus, in order to secure the claim of the plaintiff, if the Court below has directed deposit of security to the full extent of claim of the plaintiff, no valid exception can be taken to the same. The judgment cited by the learned counsel for the petitioner - defendant arises in different circumstances wherein mortgagee brought the property in question for sale and the respondent
defendant had not received any money from the mortgagee or from the purchaser and therefore, they could not be said to have flouted the undertaking given by them before the Court. Here the facts are different where the defendant has apparently disposed of the property on 27.10.2008 itself and has apparently received consideration of the same from the purchaser.
7. Consequently, this Court finds no force in this writ petition and the same is dismissed no order as to costs. (Dr.VINEET KOTHARI)J.
Item No.9
Ss/-
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Rajasthan High Court - Jodhpur
Shyam Sunder Soni. vs Mithu Lal Jain on 9 February, 2010
1. This writ petition is directed against the order dtd.24.3.2009 passed by the learned court below while deciding the application under Order 38 Rule 5 C.P.C. and order 38 Rule 1 C.P.C. read with Section 151 C.P.C. filed by the plaintiff.
2. The learned court below has directed by the impugned order that since the defendant has already put in appearance in the court, the Court is not issuing any arrest warrant while disposing of the application under Order 38 Rule 1 C.P.C., but at the same time, the defendant within one month should deposit security for a sum of SBSWP NO.3456/2009- SHYAM SUNDAR SONI V/S MITHU LAL : JUDGMENT DTD.9.2.2010 2/7
Rs. 9,33,350/- against the probable decree which may be passed by the Court in the civil suit instituted for recovery of the said sum by the plaintiff - respondent. In the case of default of deposit of said security, the defendant shall undergo civil imprisonment and thus, the Court decided both the applications under Order 38 Rule 1 and Order 38 Rule 5 C.P.C.
3. The defendant - petitioner filed this writ petition challenging the said order. Mr. Suresh Shrimali, learned counsel appearing for the defendant - petitioner urged that the suit was instituted on 17.10.2008 and the application under Order 38 Rule 5 C.P.C. was filed by the plaintiff on 20.10.2008. However, still by 15.11.2008, service on defendant could not take place and summons were returned unserved on 15.11.2008 in which next date was fixed on 2.1.2009. The learned counsel for the defendants submitted that the defendant's counsel put in appearance before the Court below on 2.1.2009. He further submitted that the property which was sought to be attached had already been sold by the defendant on 27.10.2008 and therefore, the same is not hit by Order 38 Rule 5 C.P.C. and could not be attached by the court below. He further submitted that the purpose of Order 38 Rule 1 C.PC.. is to only secure the appearance of the defendant in a civil suit and therefore, the learned trial Court could not direct the deposit of security for entire decreetal sum of Rs.9,33,350/- by the impugned order while disposing of the SBSWP NO.3456/2009- SHYAM SUNDAR SONI V/S MITHU LAL : JUDGMENT DTD.9.2.2010 3/7
application under Order 38 Rule 1 C.P.C. He submitted that since no attachment had been ordered of the said property prior to 27.10.2008 and arrest warrant for securing such the claim of the plaintiff under Order 38 Rule 5 C.P.C. was not issued, there was no question of learned trial Court directing the defendant - petitioner to furnish the security for entire sum of Rs.9,33,350/- and since no attachment had been ordered, the defendant could not be directed to be arrested for want of deposit of such security for entire decreetal sum. He, therefore, prayed for quashing of the impugned order of the learned trial Court. He relied upon the decision of Madras High Court in the case of V. Balakrishnan V/s T.M. Gowreishan and anr. Reported in AIR 2001 Madras 20, in which despite undertaking given by the respondent - defendant not to alienate the suit property, but since the suit property was already mortgaged and it was also known to the plaintiff - applicant and mortgagee brought the property for sale and the respondents - defendants have not received any money from mortgagee or from purchasers, the respondents cannot be said to have flouted undertaking given by them and no warrant of arrest could be issued against the respondents - defendants.
4. On the other hand, Mr. J.K. Bhaiya, learned counsel appearing for the respondent - plaintiff urged that both the applications were pending and both have been disposed of by common order and the purpose of order 38 Rule 1 and Order 38 Rule SBSWP NO.3456/2009- SHYAM SUNDAR SONI V/S MITHU LAL : JUDGMENT DTD.9.2.2010 4/7
5 C.P.C. is to secure the presence of the defendant in the Court and also to secure the claim of the plaintiff by attachment before the judgment, in case of apprehension of the defendant leaving the jurisdiction of the Court or absconding or there is apprehension that he may dispose of the property in question leaving the claim or the decree which may be passed by the court unsatisfied. He, therefore, urged that in the presence case, the process server's report dtd.7.11.2008 by one Sh. Radha Kishan Calla clearly noted that summons were taken by him on 24.10.2008, but the defendant Shyam Sundar Soni was not at his residence and his wife was available there, but she refused to take the summons and therefore, the summons were returned unserved. He urged that thus, the wife of the defendant and thus the defendant also came to know of filing of the suit on 24.10.2008 itself and since disposal of the property in question took place thereafter on 27.10.2008, the learned court below felt justifiably to secure the claim of the plaintiff to direct the defendant to deposit the security for a sum of Rs.9,33,350/-. Since the defendant had already put in appearance before the court below, there was no question of issuing warrant of arrest for securing his presence in the Court under Order 38 Rule 1 C.P.C. He, therefore, submitted that the order, in effect, amounts to an order under Order 38 Rule 5 C.P.C. and notwithstanding the fact that no attachment had been ordered by the Court below, the court below could direct the defendant to deposit the security to secure the claim of the plaintiff. SBSWP NO.3456/2009- SHYAM SUNDAR SONI V/S MITHU LAL : JUDGMENT DTD.9.2.2010 5/7
5. Having heard the learned counsels and in view of the facts obtaining before this Court and analysis of the Order 38 Rule 1 and Order 38 Rule 5 C.P.C. , this Court is satisfied that the learned Court below cannot be said to have committed any error in passing the impugned order dtd.24.3.2009. The provisions contained in Order 38 Rule 1 and Order 38 Rule 5 C.P.C. appears to be very clear that where the Court apprehends that the defendants may avoid process of Court or obstruct or delay the execution of any decree, which may be passed against him in future and in the process may abscond or may alienate his property so as to leave the decree, if any, which may be passed against him by the trial Court unsatisfied, to secure such decree and to secure the interest of the plaintiff, the Court may direct deposit of security to the extent considered appropriate by it. To secure the attendance of the defendant, the Court may even issue warrant of arrest and to avoid such arrest, proviso to Order 38 Rule 1 C.P.C. clearly stipulates that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiff's claim and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court.
6. The contention of the learned counsel for the petitioner - defendant that such deposit of sum to the extent of claim of the SBSWP NO.3456/2009- SHYAM SUNDAR SONI V/S MITHU LAL : JUDGMENT DTD.9.2.2010 6/7
plaintiff could only be ordered after the warrant of arrest was issued under Order 38 Rule 1 C.P.C. and in no other circumstances, with respect, is misconceived. The purpose of securing his appearance is to secure the claim of the plaintiff himself and that is why the proviso provides that to avoid the execution of arrest warrant, the defendant can pay to the officer entrusted with the execution of the warrant any sum specified in the warrant. The said proviso does not mean that the Court itself cannot direct the deposit of entire sum to the extent of claim of the plaintiff while issuing the warrant under Order 38 Rule 1 C.P.C. itself. Moreso when the application under Order 38 Rule 5 C.P.C. filed by the plaintiff was also pending before the Court and the said application was also disposed of by the Court by the same order, no water tight compartment can be taken between these two applications, particularly, when the Court was faced with the situation that during the process of service of summons, the defendant had already alienated the suit property on 27.10.2008. This might have naturally raised a suspicion in the mind of the Court that unless the claim of the plaintiff is sufficiently secured, the decree may remain unsatisfied. Thus, in order to secure the claim of the plaintiff, if the Court below has directed deposit of security to the full extent of claim of the plaintiff, no valid exception can be taken to the same. The judgment cited by the learned counsel for the petitioner - defendant arises in different circumstances wherein mortgagee brought the property in question for sale and the respondent
defendant had not received any money from the mortgagee or from the purchaser and therefore, they could not be said to have flouted the undertaking given by them before the Court. Here the facts are different where the defendant has apparently disposed of the property on 27.10.2008 itself and has apparently received consideration of the same from the purchaser.
7. Consequently, this Court finds no force in this writ petition and the same is dismissed no order as to costs. (Dr.VINEET KOTHARI)J.
Item No.9
Ss/-
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