JUDGMENT
Swatanter Kumar, J.
(1) By this Order, I propose to dispose of interim application filed by the plaintiff, in this Suit under Order 38 Rule 5, Order 39 Rule 1 & 2 read with Section 151 of the Code of Civil Procedure, 1908.
(2) The facts relevant for the purpose of disposal of this application are, that the plaintiff instituted a simple Suit for recovery of money for a sum of Rs. 3,71,863.37. The bank claims that at the request of P.P.Gupta, overdraft limit was sanctioned on 15th January, 1982 and was enhanced to Rs. 2,09,931.11 on 23rd September, 1985. In the year 1985, P.P.Gupta and his wife stated to have executed a demand promissory note under which late Shri P.P.Gupta and defendant No. I jointly and severally promised to pay to the plaintiff bank the said sum of Rs-2,09,931.11 vith interest @ 7.5% per annum above Rbi rate with the minimum of @ 17.5% per annum compounded quarterly for value receipt.
(3) This case of the plaintiff is denied by the defendants in their written statement. In the written statement, the stand taken is that the alleged promissory note was never executed by defendant No.1 and her signatures on the promissory note have been denied. It is further stated that the defendants in the Suit have not inherited any property from the deceased, as such, they have no liability to pay any amounts. The defendants in paragraph 7 of the written statement have stated that P.P.Gupta had been indulging in unlawful and illegal activities. He had cheated several persons and had wasted all his monies and assets. The defendants say that they have inherited nothing from the deceased. In the replication the bank has not specifically denied the allegation that the defendants did not inherit anything from the deceased. The bank has taken the stand that this fact is denied for want of knowledge. In the I.A. the averment of this bank is that the property bearing No. 66 Model Basti, New Delhi belonged to the deceased P.P.Gupta and his wife Mrs. Pushpa Gupta jointly. The said property is stated to have now develop upon the defendants herein. In reply to the interim application, the defendants have stated that the property in question did not belong to P.P.Gupta but belong to Shri Deep Chand father of P.P.Gupta. Deep Chand had executed a Will in favor of Bhagwati Devi his wife while executing the Will and Deep Chand had Willed that after the death of Smt. Bhagwati Devi, the house may be divided in equal shares to his sons. Deep Chand had five sons. The defendants, therefore, say that at best each one of them has 1/5th share in the property.
(4) In this application, the plaintiff has prayed for direction to the defendants to furnish security equivalent to the amount involved in the suit and interest from the date of the suit till the date of payment of the amount. The plaintiff has also prayed for ex parte injunction restraining the defendants from disposing of the property or for attachment before judgment of the property till such security is furnished. The property in regard to which these reliefs have been prayed for is 66 Model Basti, New Delhi. This application has been filed after the institution of the Suit on 18th May, 1993. The Court did not grant any ex parte injunction to the plaintiff and directed the notice to issue for 5th August, 1993.
(5) The documents on the basis of which the present Suit has been instituted are the demand promissory note date 23rd of September, 1985 and the letter written by P.P.Gupta to the bank Ex.p. 1.
(6) P.P.GUPTA had died before the institution of the suit and defendant No.1 has disputed her signatures on the promissory note. The allegations made by the bank for grant of relief are stated in paragraph 5 of the application. The bank has stated that it has come to know that the defendants are about to dispose of their property No.66 Model Basti, New Delhi, with intention to obstruct and delay the execution of the decree which is likely to be passed against them. It is stated that property belonged to deceased P.P.Gupta, no further details or any kind of documents have been placed on the record. The bank has not even cared to verify as to who is the recorded owner of the property in question.
(7) It is the settled rule of law, the provisions of Order 38 Rule 5 of the Code are provisions of Order 38 Rule 5 of the Code are never meant to be exercised lightly or without clear proof of existence of the mischief, aimed at in the Rule. In the application, the averments made by the plaintiff bank hardly satisfied the ingredient and test provided under the provisions of Order 38 Rule 5.
(8) In Premraj Mundra V. Md. Maneek Gazi & Ors. , it was held :- “THE power given to the Court to attach a deft’s property before judgment, is never meant to be exercised rightly or without clear proof of the existence of the mischief aimed at in the rule ……such a power is only given when the Court is satisfied not only given when the Court is satisfied not only that the deft is about to dispose of his properties or to remove it from the jurisdiction of the Court, but also that his object in so doing is to obstruct or delay the execution of any decree that may be passed against him, and to deprive the pltf., if successful, of the fruits of victory……”
(9) Orders under Order 38 Rule 5 of the Code are to be passed sparingly and a Court would not be justified in issuing an order of attachment before judgment or for security merely because it thinks that no harm would be done thereby or defendant would not be prejudiced. This view was also taken by this Court in “Bank of India V. M/s. National Tile Works Industries & Others” , where the Court held :- “that before this rule 5 can be invoked it must inter alia be shown by the plaintiff that defendant has acted or is about to act with intent to obstruct or delay the execution of any decree that may be passed against him. The court must be satisfied that all the ingredients of the rule exist. Mere fact that no harm would be caused to defendant or that defendant would not be prejudiced by such an order could be no ground to pass order under Order xxxviii Rule 5 of the Code for attachment before judgment. In view thereof, it cannot be said that the plaintiff has established the necessary ingredients. Mere allegations are not be themselves enough and in the instant case even clear allegations are lacking and wanting, I find no merit in this application.
(10) The principles governing an order directing the attachment of property before judgment or of directing the defendant to furnish a security are the same. The Court must first satisfy itself of the existence of the conditions postulated in Order 38 Rule 5 of the Code and then alone pass any order under these provisions. If the application does not plead the ingredients and there is nothing on record to show prima fade, that the defendant is intending to play a mischief to frustrate the rights of the plaintiff normally and also satisfy the other conditions stipulated in the provisions, the application should normally fail.
(11) In “The Nullimarla jute Mills Co. Ltd. v. Sree Mahaveer Rice and Oil Mills” ‘, the Court observed :- “Consequently, it must be held that non-compliance of the provisions under sub-rule (1) of R.5 is conspicuous from the order. The satisfaction of the court in respect of the various ingredients like the defendant obstructing or delaying the execution of any decree that might be obtained by the plaintiff, by trying to dispose of the property or by removing the property from the court’s jurisdiction not only lies in the court directing the defendant to furnish security, but also to show cause by appearance as to why the defendant should not furnish security. Hence the orders are void for non-compliance of provisions of R.5(l).
(12) In a very recent Judgment pronounced by R.C. Lahoti, J. in “Indian Railway Construction Co. Ltd. v. M/s. Quadricon Pvt.Ltd.”, I.A. 4412/94 &: 5240/94 in Omp 36 of 1992, the Hon’ble Judge after dealing with the subject at great length held:- “It is well settled that an order for attachment before judgment is not to be made merely because the court is convinced of the plaintiff having a strong case on merits or merely because the court feels that it would not cause any harm to the opposite party. The ingredients must exist without which a Court will not have jurisdiction to make the order. “In the present case hardly any particulars have been given or facts have been stated which would be sufficient to attract the applicability of the provisions of Order 38 Rule 5 of,the Code.”
(13) The observation of the learned Judge in the case (supra) squarely applies to the present case as well, which reads as under:- “WITHOUT entering upon the discussion suffice it to say that the application does not set out any facts attracting the applicability of any of the ingredients or Order 38 Rule 5 Civil Procedure Code so as to persuade this court to grant the relief by way of attachment before judgment to the petitioner.”
(14) The defendants in the present case have specifically stated that they have not inherited any estates from their deceased father. This allegation has not been appropriately denied nor any further details have been given in the replication or rejoinder to the application. There can be no dispute to the principle of law that no liability can be fastened upon the legal representatives of a deceased if they can show that they have not inherited any estates of the deceased. Mr. P-P.Gupta had died before the institution of the Suit and nothing appears to have changed from the date of the institution of the Suit till date.
(15) In this application, the bank has prayed for an Order that till such time security is furnished, the property be attached before judgment or defendants be restrained from disposing of the aforesaid property by an ad interim ex parte order. Prayer (b) in the application is of no help to the plaintiff at this stage. The said prayer was not granted ex parte and there is no prayer in the application where the bank prays for an order of injunction on its own merits.
(16) In view of the discussed above, I hold that the plaintiff ‘bank has failed to plead and prima facie satisfy the Court of the essential ingredients for seeking an order in its favor under the provisions of Order 38 Rule 5 of the Code, consequently, application of the plaintiff bank in I.A. 5150/94 is dismissed.
(17) In the facts and circumstances of the case, however, there is no Order as to the costs.