Case Note & Summary
The appellants, legal heirs of the original plaintiff, filed a suit for specific performance of an agreement of sale dated 05.12.2011 executed by the respondents in respect of a property. They also filed an application under Order 38 Rules 1 and 2 CPC for attachment before judgment, alleging that the respondents were attempting to alienate the property. The trial court dismissed the application, holding that the appellants had not made out a prima facie case. Aggrieved, the appellants filed these appeals. The High Court examined the material on record, including the agreement of sale, payment receipts, and evidence of possession. It noted that the respondents had denied the agreement and had executed a sale deed in favor of a third party during the pendency of the suit. The court held that the appellants had established a prima facie case and that there was a real risk of the property being alienated, which would defeat any decree that may be passed. The court also found that the balance of convenience was in favor of the appellants and that they would suffer irreparable loss if attachment was not granted. Accordingly, the High Court allowed the appeals, set aside the trial court's order, and directed attachment of the property before judgment.
Headnote
A) Civil Procedure Code - Attachment Before Judgment - Order 38 Rules 1 and 2 CPC - Prima Facie Case - The court held that for grant of attachment before judgment, the plaintiff must show a prima facie case and that the defendant is about to dispose of the property with intent to defeat the decree. The trial court's dismissal was set aside as the appellants had made out a strong prima facie case for specific performance and there was evidence of attempts to alienate the property. (Paras 10-15) B) Specific Performance - Suit for Specific Performance - Prima Facie Case - The court noted that the appellants had entered into an agreement of sale, paid substantial consideration, and were in possession. The respondents' denial of the agreement and subsequent sale to third parties indicated a prima facie case for specific performance. (Paras 8-12) C) Civil Procedure Code - Balance of Convenience - Irreparable Loss - The court found that the balance of convenience was in favor of the appellants as they were in possession and would suffer irreparable loss if the property was alienated during the pendency of the suit. (Paras 13-15)
Issue of Consideration
Whether the trial court erred in dismissing the applications for attachment before judgment under Order 38 Rules 1 and 2 CPC, despite the appellants demonstrating a prima facie case and risk of alienation of the suit property.
Final Decision
The High Court allowed the appeals, set aside the trial court's order dated 05.09.2024, and directed attachment of the suit property before judgment under Order 38 Rules 1 and 2 CPC.
Law Points
- Order 38 Rule 5 CPC
- attachment before judgment
- prima facie case
- balance of convenience
- irreparable loss
- risk of alienation
- specific performance
