Civil money suit

File petition u/order 38 rule 5 read with sec 151 CPC in present suit and get order of attachment of defendants property till the decision of suit/case or to furnish bank guarantee of similar suit amount. 

Filing a Petition under Order 38 Rule 5 CPC To secure the plaintiff's interests, you can file a petition under Order 38 Rule 5 of the Civil Procedure Code (CPC) seeking an order of attachment of the defendant's property or a bank guarantee. Key Requirements -

*Threat to dispose of property*: The defendant must be likely to dispose of or remove the property from the court's jurisdiction to obstruct or delay the execution of the decree. - 

*Prima facie case*: You need to demonstrate a prima facie case in your favor. Procedure 

1. *Draft the petition*: Prepare a petition under Order 38 Rule 5 CPC, stating the grounds for attachment and providing evidence to support your claim.

 2. *File the petition*: File the petition in the court where the main suit is pending.

 3. *Serve notice*: Serve a notice on the defendant, allowing them to respond to the petition. Attachment Order or Bank Guarantee - *Attachment order*: If the court grants the petition, it may order the attachment of the defendant's property until the decision of the suit.

- *Bank guarantee*: Alternatively, the court may direct the defendant to furnish a bank guarantee for a similar suit amount. 

Importance of Legal Counsel - *Consult a lawyer*: It's essential to consult with a lawyer who can guide you through the process, help you prepare the petition, and represent you in court. 

By filing a petition under Order 38 Rule 5 CPC, you can take proactive steps to protect your interests and ensure that the defendant's assets are not dissipated or removed from the court's jurisdiction.

Respected Legal Members Mr. Bhartesh G , Mr. Rama Chary,

A quick query in the subject wrt to proposed line of legal actioning. As the buyer has cancelled the purchase agreement and seeking refund, trigger being cancellation of the agreement, how can he petition for  stopping the developer from selling the property, which may be the only way to repay the cancelled buyers debt and will Courts be able to pass such an order restraining from selling a property whike the buyer himself has opted out. I guess only a Bank Guarantee to secure monetary interest at best can be pleaded. Pls correct me.

Regards

Balaji S FCA ., LL.B.

You have filed a suit for recovery of your money hence your doubt about restraining the builder from completing the construction is unnecessary.

You are no where concerned with his construction or to get a stay order for that 

You should concentrate on recovery of money alone and for that you have been advised to file a petition under order 38 rule 5 cpc to protect your interests.

Order 38 Rule 5 of the Code of Civil Procedure (CPC) deals with attachment of property before judgment.

It allows a plaintiff to request the court to attach a defendant's property if there's a reasonable apprehension that the defendant might dispose of or remove the property to avoid satisfying a potential decree.

The court can order the defendant to furnish security to produce the property or its value when required, or to appear and explain why they shouldn't provide security. 

What is the stage of suit for recovery of earnest money paid by buyer?

If the builder has admitted refund of the amount, the plaintiff may move application u/o XXXVIII Rule 5 CPC to secure his interest, which may be by attaachment of movable or immovable asset(s) of defendant.

What is the opinion and advise of your professor / tutor / coach if it is not a moot court topic ? 

"developers lawyer has admitted and agreed to refund"!
What type of admission? Is the admission made in the pleadings before the Court? If so, where is the question of "tariq pe tariq"?

It appears that this is not a query but a riddle or a moot court question.

admission is only from developers lawyers letter

developer/defendant has not appeared in court hearings twice..another date has been proposed

In a civil court proceedings there is no necessity for the parties to appear before court on each and every date of hearing.

The representation by respective lawyers will be sufficient.

File petition under Order 39 Rule 1 & 2 CPC for injunction to restrain the developer from creating third party rights or transferring possession of the said flat till disposal of the money suit. Also, you can file under Order 38 Rule 5 CPC for attachment before judgment, so that court may ask developer to either not sell or furnish security equivalent to the suit amount. Both can be done in same court where the money suit is pending.

Better act fast, because once flat is sold and possession is given, it becomes more complicated to recover the money.

that I will do but question is whether any impounding will be charged for producing unregistered sale agreement as a documentary evidence only ?

Originally posted by : Jayanti Devi
	admission is only from developers lawyers letter developer/defendant has not appeared in court hearings twice..another date has been proposed

It appears that student is yet to learn the rudiments of cpc.

why should it becomes complicated ?

why should palintiff be bothered about others ??

first of all money has not been refunded so agreement has not been legally cancelled so if developer makes another agreement witho

Prima facie it is an examination hall question paper.

no its not a question paper. my simple question was whether any impounding/penalty would be applicable if agreement (unregitered) is presented as an evidence in court for enforcing it?