1921 (9) TMI 1 - HC - Indian Laws

High Court lifts attachment before judgment, ruling in favor of substantial merchants.

The High Court of Bombay allowed the appeals against orders for attachment before judgment as the defendants were not obstructing or delaying any decree. ... Doctrine that a stay under Section 10 of the Civil Procedure Code does not preclude interlocutory orders - Attachment before judgment under Order XXXVIII Rule 5 CPC - Requirement of satisfaction as to intent to obstruct or delay execution before ordering attachment - Obligation to require further evidence before making an ex parte order for security or attachmentDoctrine that a stay under Section 10 of the Civil Procedure Code does not preclude interlocutory orders - Whether an order staying a suit under Section 10 CPC prevents the Court from making interlocutory orders such as attachment before judgment. - HELD THAT: - The Court held that Section 10, which enjoins that no Court shall proceed with the trial of a suit where the matter in issue is directly and substantially in issue in a previously instituted suit between the same parties, does not prohibit the making of interlocutory orders. Interlocutory measures like appointment of a receiver, injunctions, or attachment before judgment are not barred by a stay under Section 10 and may be made by the Court despite the stay of trial. [Paras 2]Stay under Section 10 CPC does not preclude the Court from making interlocutory orders, including attachment before judgment.Attachment before judgment under Order XXXVIII Rule 5 CPC - Requirement of satisfaction as to intent to obstruct or delay execution before ordering attachment - Obligation to require further evidence before making an ex parte order for security or attachment - Whether the facts before the Court justified making and later confirming an ex parte order for attachment before judgment under Order XXXVIII Rule 5 CPC, and whether the Court should have demanded further evidence prior to issuing such an order. - HELD THAT: - The Court found that the material placed before the trial Court did not establish that the defendants had brought themselves within Rule 5 by intending to obstruct or delay execution of a prospective decree. Vague allegations that defendants were about to remove or dispose of property, or that shops were being closed, were insufficient; the evidence showed that one shop had already disposed of its stock and another had dwindled. Given the insufficiency of the plaintiff's material, the Court should have called for further evidence before making an ex parte order requiring security. The appellants subsequently produced evidence demonstrating they were substantial merchants and not disposing of property to obstruct execution, while the plaintiff produced no corroborative proof for his March 1920 allegations. Accordingly, the original attachment order was unsustainable and ought to have been discharged instead of being confirmed. [Paras 3, 4]Attachment before judgment was not justified on the materials; the Court ought to have required further evidence before granting an ex parte order, and the original order must be discharged with security released.Final Conclusion: The appeals are allowed: the attachment before judgment is set aside, security discharged, and the appellants awarded costs in the High Court and in the Court below. The High Court of Bombay allowed the appeals against orders for attachment before judgment. The Court found no grounds for the attachment as defendants were not trying to obstruct or delay any decree. The appellants were substantial merchants and provided evidence to support this, while the plaintiff failed to substantiate their allegations. The attachment was removed, and the appellants were awarded costs.