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Purpose of Order 38 Rule 1 was decided

Nida Khatri ,
  16 September 2020       Share Bookmark

Court :

Brief :
Court finds no force in the writ petition and it is dismissed.
Citation :
Petitioner:SundarSoni Respondent:MithuLal Citation: SBSWP No 3456 of 2009

Bench:

VINEET KOTHARI

Issue:

Whether the court committed an error in ordering to pay security amount?

Facts:

  • Writ petition passed while deciding application under Order 38 Rule 1 & Rule 5 of the Code of Civil Procedure.
  • the defendant is in appearance in the court, thus the court is not issuing any arrest warrant.
  • But, the defendant in one month must deposit the security amount of Rs9,33,350/-  as per the decree passed by the Court in the civil suit instituted for recovery of the said sum by the plaintiff – respondent.
  • In the case of default of deposit of said security, the defendant shall undergo civil imprisonment.

Appellant's contentions:

  • The defendant has filed this writ petition challenging the order passed by the court.
  •  The defendant urged that the suit was instituted on 17th Oct,.2008 and the application under Order 38 Rule 5 C.P.C. was filed by the plaintiff on 20th Oct,.2008
  • However, still by 15th Nov, 2008, service on defendant could not take place and summons were returned unserved on 15th Nov, 2008 in which next date was fixed on 2nd Jan,2009.
  • Property attached had already been sold by the defendant on 27th Oct,2008, hence it does not come under Order 38 Rule 5 of C.P.C
  • Purpose of Order 38 Rule 1 C.PC.. is to only secure the appearance of the defendant in a civil suit and therefore, the learned trial Court could not direct the deposit of security for entire decreetal sum of Rs.9,33,350/-
  • No attachment was ordered before 27thOct and not even the arrest warrant was issued.
  • Thus, defendant could not be arrested for want of deposit of such security for entire decretal sum, case of Balakrishnan V/s Gowreishan was cited and he prayed for quashing of the impugned order.

Respondent's contentions:

  • The defendant has to pay the entire amount of Rs.9,33,350/- as the security amount.
  • He stated that both the applications were pending and both have been disposed of by common order.
  • The purpose of order 38 Rule 1 and Rule 5 of CPC is to secure the presence of the defendant in the Court and also to secure the claim of the plaintiff by attachment before the judgment.
  • Also in cases of apprehension of the defendant leaving the jurisdiction of the Court or absconding or there is apprehension that he may dispose of the property in question leaving the claim or the decree which may be passed by the court unsatisfied.
  • The summons were served but SundarSoni was not at his residence and his wife was available there, but she refused to take the summons and the summons returned unserved.

Final judgement:

  • The learned court did not commit any error in passing the impugned order.
  • The provisions of Order 38 Rule 1 & Rule 5 of the CPC are very clear & they are set to prevent the defendant from absconding amongst other things.
  • Court finds no force in the writ petition and it is dismissed.
 

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