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AI Drafter - (New and Powerful) ✕ Generate professional replies, appeals, opinions to Show Cause Notices, assessment orders, audit objections, and other legal communications using TaxTMI's AI Drafter.
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Issues: (i) Whether the plaintiff was entitled to an order of attachment before judgment under Order XXXVIII Rule 5 of the Civil Procedure Code, 1908. (ii) Whether the plaintiff was entitled to an interim injunction under Order XXXIX Rule 1 and Order XXXIX Rule 2 of the Civil Procedure Code, 1908 to restrain alienation of the properties.
Issue (i): Whether the plaintiff was entitled to an order of attachment before judgment under Order XXXVIII Rule 5 of the Civil Procedure Code, 1908.
Analysis: The relief under Order XXXVIII Rule 5 is a drastic and extraordinary power and can be granted only on concrete material showing that the defendant is attempting to dispose of or remove property with intent to defeat a decree. Mere allegations in a money suit are insufficient. The Court also noted that the plaintiff's own case was that title deeds had been deposited and an equitable mortgage had been created, which weakened the plea that the defendant was dealing with the property to defeat the claim. The provision cannot be used to convert an unsecured debt into a secured debt.
Conclusion: The plaintiff was not entitled to attachment before judgment.
Issue (ii): Whether the plaintiff was entitled to an interim injunction under Order XXXIX Rule 1 and Order XXXIX Rule 2 of the Civil Procedure Code, 1908 to restrain alienation of the properties.
Analysis: Interim injunction requires a prima facie case, balance of convenience, and likelihood of irreparable injury. The Court held that where the properties were already stated to be covered by an equitable mortgage in favour of the plaintiff, and the suit itself was for recovery of money, the plaintiff could not invoke Order XXXIX Rules 1 and 2 merely to prevent the defendant from dealing with his property. The schedule properties were not the subject matter of the suit, and the remedy sought was unsupported by sufficient grounds.
Conclusion: The plaintiff was not entitled to interim injunction.
Final Conclusion: The appeals failed, and the orders refusing attachment before judgment and interim injunction were left undisturbed.
Ratio Decidendi: Attachment before judgment and interim injunction in aid of a money claim require specific, credible material showing a real attempt to defeat the decree; they cannot be granted merely because a suit is pending or to convert an unsecured claim into a secured one, especially where an equitable mortgage is asserted.
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