Case Note & Summary
The appellants, who are the plaintiffs in O.S.No.160/2021, filed a suit seeking specific performance of a sale agreement dated 05.11.2018 executed by the respondent in their favor for a commercial property. They also filed I.A.No.1 under Order 38 Rule 5 CPC for attachment before judgment, alleging that the respondent was attempting to sell the property to third parties despite the agreement. The trial court dismissed the application, holding that the appellants had not made out a prima facie case. The High Court, in appeal, examined the factual matrix and found that the respondent had indeed executed a sale agreement and was likely to dispose of the property. The court noted that the appellants had paid a substantial advance and were ready and willing to perform their part of the contract. The court held that the trial court had erred in dismissing the application as the appellants had satisfied the conditions for attachment before judgment. The appeal was allowed, and the order of the trial court was set aside. The court directed the trial court to pass appropriate orders on the application for attachment before judgment in accordance with law.
Headnote
A) Civil Procedure - Attachment Before Judgment - Order 38 Rule 5 CPC - The court must be satisfied that the defendant is about to dispose of the whole or any part of his property with intent to obstruct or delay the execution of any decree that may be passed against him. The appellants demonstrated that the respondent had executed a sale agreement and was attempting to sell the property to third parties, which constitutes sufficient ground for attachment. Held that the trial court's dismissal was erroneous as the appellants had made out a prima facie case and the balance of convenience was in their favor (Paras 1-10).
Issue of Consideration
Whether the trial court erred in dismissing the application for attachment before judgment under Order 38 Rule 5 CPC despite the appellants making out a prima facie case and showing that the respondent was likely to dispose of the property.
Final Decision
The appeal is allowed. The order dated 30.01.2023 passed by the Principal Senior Civil Judge, Chikamagalur, on I.A.No.1 in O.S.No.160/2021 is set aside. The trial court is directed to pass appropriate orders on the application for attachment before judgment in accordance with law.
Law Points
- Attachment before judgment
- Order 38 Rule 5 CPC
- Prima facie case
- Balance of convenience
- Irreparable injury
- Likelihood of dissipation of assets
Case Details
2023 LawText (KAR) (07) 27
Sri A. Madhusudhana Rao for appellants, Sri Raja Subrahmanya Bhat B. for respondent
Vinod Kumar Jain and others
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Nature of Litigation
Civil appeal against dismissal of application for attachment before judgment in a suit for specific performance of a sale agreement.
Remedy Sought
The appellants sought attachment before judgment of the suit property to prevent the respondent from disposing of it pending the suit.
Filing Reason
The appellants alleged that the respondent was attempting to sell the property to third parties despite having executed a sale agreement in their favor.
Previous Decisions
The trial court dismissed I.A.No.1 filed under Order 38 Rule 5 CPC on 30.01.2023.
Issues
Whether the trial court erred in dismissing the application for attachment before judgment under Order 38 Rule 5 CPC.
Whether the appellants made out a prima facie case for attachment before judgment.
Submissions/Arguments
Appellants argued that the respondent had executed a sale agreement and was likely to dispose of the property, warranting attachment before judgment.
Respondent contended that the appellants had not made out a prima facie case and that the application was premature.
Ratio Decidendi
For an order of attachment before judgment under Order 38 Rule 5 CPC, the court must be satisfied that the defendant is about to dispose of the property with intent to obstruct or delay the execution of any decree. The appellants demonstrated a prima facie case and the respondent's attempt to sell the property, which justified attachment.
Judgment Excerpts
The factual matrix of the case of the appellants is that the appellants had filed a suit in O.S.No.160/2021 and interalia, sought for an order of attachment before judgment by filing an application under Order 38 Rule 5 of CPC.
It is their case that the respondent and one Abdul Khader are the owners of the commercial property...
The trial court dismissed the application holding that the appellants had not made out a prima facie case.
Procedural History
The appellants filed O.S.No.160/2021 for specific performance of a sale agreement. They filed I.A.No.1 under Order 38 Rule 5 CPC for attachment before judgment. The trial court dismissed the application on 30.01.2023. The appellants filed the present appeal under Order 43 Rule 1(q) read with Section 151 CPC.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order 38 Rule 5, Order 43 Rule 1(q), Section 151
