When advocate is not entitled to get order of attachment bef


When Advocate is not entitled to get order of attachment before judgment for recovery of his professional fees?

 
 I find from application Exhibit5
and the order impugned that
besides the averments and submission of statistical data below paragraph
11 in the suit, there was no shred of evidence in the form of documents
before the Trial Court which could have convinced it to grant the said
application. There was no material before the Trial Court to prima facie
conclude that the Respondent was liable to pay the amount as claimed by
the Petitioner. It cannot be overlooked that the Respondent is an
agriculturist and the amount at issue is compensation that is to be paid to
him on account of acquisition of his land.

23 The Apex Court, in the matter of Raman Tech and Process
Engineering v/s Solanki Traders (supra), has concluded that the object of
Order 38 Rule 5 is to prevent any Defendant from defeating the
realization of the decree that may ultimately be passed in favour of the
Plaintiff by attempting to dispose of or alienate his property or remove the
movables. Paragraphs 4 and 5 of the said judgment read as under:“
4. The object of supplemental proceedings
(applications for arrest or attachment before
judgment, grant of temporary injunctions and
appointment of receivers) is to prevent the ends of
justice being defeated. The object of order 38 rule 5
CPC in particular, is to prevent any defendant from
defeating the realization of the decree that may
ultimately be passed in favour of the plaintiff, either
by attempting to dispose of, or remove from the
jurisdiction of the court, his movables. The Scheme
of Order 38 and the use of the words `to obstruct or
delay the execution of any decree that may be
passed against him' in Rule 5 make it clear that
before exercising the power under the said Rule, the
court should be satisfied that there is a reasonable
chance of a decree being passed in the suit against
the defendant. This would mean that the court
should be satisfied the plaintiff has a prima facie
case. If the averments in the plaint and the
documents produced in support of it, do not satisfy
the court about the existence of a prima facie case,
the court will not go to the next stage of examining
whether the interest of the plaintiff should be
protected by exercising power under Order 38 Rule
5CPC. It is wellsettled
that merely having a just or
valid claim or a prima facie case, will not entitle the
plaintiff to an order of attachment before judgment,
unless he also establishes that the defendant is
attempting to remove or dispose of his assets with

the intention of defeating the decree that may be
passed. Equally well settled is the position that even
where the defendant is removing or disposing his
assets, an attachment before judgment will not be
issued, if the plaintiff is not able to satisfy that he
has a prima facie case.
5. The power under Order 38 Rule 5 CPC is drastic and
extraordinary power. Such power should not be
exercised mechanically or merely for the asking. It
should be used sparingly and strictly in accordance
with the Rule. The purpose of Order 38 Rule 5 is not
to convert an unsecured debt into a secured debt.
Any attempt by a plaintiff to utilize the provisions of
Order 38 Rule 5 as a leverage for coercing the
defendant to settle the suit claim should be
discouraged. Instances are not wanting where
bloated and doubtful claims are realised by
unscrupulous plaintiffs by obtaining orders of
attachment before judgment and forcing the
defendants for out of court settlement, under threat
of attachment.”
(emphasis is mine)
24 It, therefore, has to be borne in mind that Order 38 Rule 5 is
not to be exercised mechanically and casually. It is that power which has
to be exercised sparingly and so to say in the rarest of rare case where the
intended object of the Defendant is prima facie visible in frustrating the
claim of the Plaintiff. In the instant case, besides the admission of the
Respondent that an amount of Rs.15,000/is
to be paid by way of
professional fees, the details put forth by the Petitioner/ Plaintiff below
paragraph 11 in the suit, prima facie appear to be a mere statistical data,
unsupported and unsubstantiated by any document.

25 In the light of the above, I do not find that the impugned
order could be termed as being perverse or erroneous so as to cause an
interference.


IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
WRIT PETITION NO.9591 OF 2015
Annarao s/o Govindrao Patil,
Age : 57 years, Occ : Legal Practitioner,

VERSUS
Dnyanobas/o Vithal Bade,

CORAM: RAVINDRA V. GHUGE, J.
DATE :22ndSeptember, 2015
Citation;2016(2) ALLMR110
http://www.lawweb.in/2016/04/when-advocate-is-not-entitled-to-get.html
 
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