Jagdish Chand and Another Vs Amanpreet Singh

[1] Challenge in the present r e vision petition is to order d a ted 12.01.20 2 1, whereby learned Addition a l Civil Judge (Senior Divisi o n), Nangal a l lowed the application filed u n der Order 38 Rule 5 CPC by the plaintiff- r espondent and the property o w ned by the petitioners-defend a nts qua the area, which is the subject- m atter of agreement to sell d a ted 30.10.20 1 7, has been ordered to be attached. [2] Respondent-plaintiff filed a suit seeking decree for recover y of Rs.5,00,000/- against the petitioners, cla i ming that defendant No.2 thro u gh defendan t No.1, who is the attorney ho l der and father of defendant N o .2, executed an agreement to sell qua 12 m arlas of land and received ear n est

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money o f Rs.5,00,000/-.

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RAJNEESH SHARMA 2025.03.07 17:47 I attest to the accuracy and integrity of this document

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CR-333-2021 (O& M )

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[3] Defendants represented that the land under agreement is in the Town Pl a nning Scheme of the Muni c ipal Council, Nangal. The s aid represent a tion was later on found to be f a lse. Still plaintiff was ready to get the sale d eed registered in his favour b y making full and final paymen t to defendan t No.1. Further he agreed to get the land approved. The defend a nts having fa i led to do so, the plaintiff was e n titled for recovery of Rs.5,00,0 0 0/along wi t h interest @ 12% per annum f rom the date of agreement to sell dated 30. 1 0.2017 till its realization.

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[4] Plaintiff filed application u n der Order 38 Rule 5 CPC see k ing attachme n t of the property of defendant s , pleading that defendant No.1 has already s o ld part of the suit land and ther e is an apprehension that defend a nts will disp o se off the entire property to de p rive the plaintiff of the fruits o f the anticipat e d decree.

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The application was contested by the petitioners-defendants. [5] It is the said application th a t has been allowed vide impug n ed order by l earned Additional Civil Judge (Senior Division), Nangal, hol d ing as under: -

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“ The power under Orde r 38 Rule 5 CPC of the Code is t o be exercised sparingly and stri c tly by the Court as it amount s to restrain of the person to enjoy the property. However, in the pre s ent suit for recovery, it is clear that the defendants had executed the s ale deed of part of the same pr o perty of which the agreement w as executed between the parti e s. Furthermore, if the immov a ble property in question is sold o u t by the defendants then irrepar a ble loss will suffer to the plaint if f as the person filing the suit for recovery of Rs.5,00,000/- al o ng with interest from the dat e of agreement dated 30.10.2017 fr o m the person and the property o f the defendants. Hence, in the exc e ptional circumstances arising in the present case as there is appr e hension that the defendants will s ale

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RAJNEESH SHARMA 2025.03.07 17:47 I attest to the accuracy and integrity of this document

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CR-333-2021 (O& M )

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out whole of the property, th e present application under Orde r 38 Rule 5 CPC stands allowed wi t h regard to the property that is o w ned by defendant Sahil Kumar having same area as mentioned in the agreement to sell dated 30. 1 0.2017, the plaintiff is directe d to provide the detail of the prope r ty/properties measuring (0-12) o w ned by the defendant Sahil K umar, which constitute amount sam e or more than amount mentioned i n the present recovery suit. ”

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[6] Mr. Lath, counsel for the petitioners has assailed the o r der submittin g that the application under Ord e r 38 Rule 5 CPC has been allo w ed in a mec h anical manner, even though as per settled proposition of law, the power vested under Order 38 Rule 5 C P C is to be exercised sparingly a nd strictly a n d that too after strict complian c e of the procedure as contempl a ted under Or d er 38. He submits that prior to a llowing the application filed u n der Order 38 Rule 5 CPC, the Court has to re c ord satisfaction that the defend a nts intend to obstruct or delay the execution o f the decree. The defendants have 122 marl a s of land whereas, agreement t o sell in favour of plaintiff is ne a rly for 12 m a rlas of land. In these circums t ances, there can’t be semblanc e of satisfacti o n to the effect that any dispo s al of the land is with an inten t to obstruct t h e decree. In order to hammer fo rth his contentions, he relied u p on ‘M/s Raman Tech. & Process Engg. Company & Another Versus M/s Solanki Traders’, 2008(1) RCR (Civil) 195, Onkar Mal Mittal versus State Bank of Patiala’, 1992(1) RRR 45, Smitha versus P.C. Varghese, 2015(88) RCR (Civil) 212, Mohammed Hariss versus Fathima, 1993 (sup) CivCC 440, Nidhi Clearing & Forwarding Company versus Associated Cement Companies Limited’, 1996(1) CivCC 380, M/s Prem Steel and Allied Industries and others versus Roopak Kumar Bhardwaj RAJNEESH SHARMA 2025.03.07 17:47 and others’, 2019(2) PLR 696, ‘Machineni Koteswara Rao Krishna Dist. I attest to the accuracy and integrity of this document

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CR-333-2021 (O& M )

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Versus Peddu Samantha, Krishna Dist., 2017(4) HLT 567, M/s Manajwasree Constructions Pvt. Ltd. Represented by its Director Mr. G. Srikumar and another versus Mrs. Jyothi Prem Proprietrix M/x Gemma Habitats Rep. by its Authorized Signatory Mr. Prem Metharan, 2017(2) LW 494, Suravee Business Services Pvt. Ltd. Versus Chittavalsah Jute Mills Ltd., Law Finder Doc Id # 1683253 and M/s Empee Distilleries Ltd., represented by its Managing Director versus Mohan Breweries and Distilleries Limited, represented by its Senior Deputy General Manager’, 2019(2) CivilLJ 646 .

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[7] He thus, submits that attac h ment having been made wit h out complian c e of Order 38 Rule 5, Sub Rule (1) (b) and 4 CPC, is void ab i n itio and can n ot be sustained.

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[8] I have heard counsel for the petitioners and have carefully g o ne through t h e records of the case.

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[9] At the time notice of moti o n was issued on 19.02.2021, t his Court ob s erved as under:-

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Notice of motion, retu r nable for 19.04.2021.

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In the meanwhile, in c ase the petitioner wants to sell his property, he is at liberty t o move an appropriate applica t ion before the trial Court for vacation of the attachment o r der subject to deposit of Rs.5 lak h s from the sale proceeds. ”

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RAJNEESH SHARMA 2025.03.07 17:47 I attest to the accuracy and integrity of this document

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CR-333-2021 (O& M )

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[10] Mr. Lath, counsel for the pe t itioners submits that the said o r der stands co m plied with.

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[11] In view of the above, t h is Court finds that order d a ted 19.02.20 2 1 is nothing but in complian c e of the procedure contempl a ted under Or d er 38 Rule 1 CPC only.

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[12] In view of the above, the i m pugned order is hereby set as i de. Order da t ed 19.02.2021 passed by this Court is made absolute and s h all remain o p erational.

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[13] Disposed off .

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[14] All pending miscellaneou s application(s), if any, st a nds disposed o ff .

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(PANKAJ JAIN) JUDGE

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04.03.20 2 5

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‘R. Sharma'

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Whether speaking/ reasoned : Yes/No Whether reportable : Yes/No