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