Case Note & Summary
The petitioner, Manoj Jaiswal, filed a writ petition challenging an order refusing to attach compensation money received by the respondent, Prakash Jaiswal, in land acquisition proceedings. The petitioner had sought attachment under Order XXXVIII Rule 5 CPC, arguing that the respondent intended to dispose of the money to defeat a potential decree. The respondent contended that the money was compensation for loss of livelihood and would be used to purchase seeds, repay loans, and augment income from another piece of land. The High Court held that the fundamental requirement of Order XXXVIII Rule 5 is that the property must be about to be disposed of with a view to defeat execution of a decree. The compensation money was not sale proceeds but compensation for permanent loss of livelihood, and the respondent's intended use was legitimate. There was no material showing the respondent intended to defeat the decree. The court found no patent illegality in the impugned order and dismissed the petition. The request for extension of interim relief was also rejected.
Headnote
A) Civil Procedure - Attachment Before Judgment - Order XXXVIII Rule 5 CPC - Property must be about to be disposed of with intent to defeat execution - Compensation received for loss of livelihood, intended for reinvestment and loan repayment, does not fall within the scope of the rule - Held that no patent illegality in refusing attachment (Paras 3-4).
Issue of Consideration
Whether land acquisition compensation money in the hands of the defendant can be attached under Order XXXVIII Rule 5 CPC as property likely to be disposed of to defeat a decree.
Final Decision
Writ petition dismissed. Rule discharged. No costs. Request for extension of interim relief rejected.
Law Points
- Order XXXVIII Rule 5 CPC requires property to be about to be disposed of with intent to defeat execution
- compensation for loss of livelihood not covered
Case Details
2018 LawText (BOM) (09) 98
WRIT PETITION NO.1823/2018
Shri Abhay Sambre for petitioner, Shri Rajnish Vyas for respondent
Manoj s/o Mohanlal Jaiswal
Prakash s/o Nanulal Jaiswal
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Nature of Litigation
Writ petition challenging refusal to attach compensation money under Order XXXVIII Rule 5 CPC.
Remedy Sought
Petitioner sought attachment of compensation money received by respondent in land acquisition proceedings.
Filing Reason
Petitioner believed respondent would dispose of the money to defeat a potential decree.
Previous Decisions
Trial court refused attachment; petitioner challenged by writ petition.
Issues
Whether compensation money for loss of livelihood can be attached under Order XXXVIII Rule 5 CPC.
Submissions/Arguments
Petitioner argued that respondent's intention to use money for seeds and loan repayment amounted to admission of disposal to defeat decree.
Respondent contended money was compensation for permanent loss and intended for legitimate livelihood restoration.
Ratio Decidendi
Order XXXVIII Rule 5 CPC requires that the property must be about to be disposed of with intent to defeat execution of a decree. Compensation for loss of livelihood, intended for reinvestment and loan repayment, does not fall within this scope.
Judgment Excerpts
The most fundamental aspect of Order XXXVIII Rule 5 of the Code of Civil Procedure is that the property in respect of which order is sought must be the one which is about to be disposed of with a view to defeat the execution of the decree that may be passed against the defendant.
These facts, would not take this case within the scope of Order XXXVIII Rule 5 of CPC.
Procedural History
Petitioner filed suit for recovery; sought attachment of compensation money before judgment; trial court refused; petitioner filed writ petition in High Court.
Acts & Sections
- Code of Civil Procedure, 1908 (CPC): Order XXXVIII Rule 5
