JUDGMENT
Mukerji, Ag. C.J.
1. This is an appeal against an order directing the attachment before judgment of certain properties of the defendants who are the appellants before us. It appears that the respondents obtained a preliminary decree for sale against the appellants on 24th February 1931. After the expiry of the usual six months’ time allowed for payment, on 27th August 1931, the respondent made an application for the passing of the final decree. Ten days later, on 7th September 1931, the plaintiffs applied for attachment before judgment of the property of the defendants. An affidavit was filed along-with the application. The application was based on the ground that the property mortgaged had deteriorated in. value and was likely to deteriorate in value further owing to the remission of rents on the part of the Government.. The application further stated that it-was feared that the defendants who had already encumbered some of their properties would dispose of or encumber their remaining property in order to avoid the payment of the decretal amount that would remain unpaid and unsatisfied even after the sale of the mortgaged property. The defendants contested this application but the learned Judge passed a two line order to the following effect:
Let a temporary attachment go, but property fetching an annual profit of Rs. 800 and no more will be attached.
2. This was a very vague order to pass, but we are told by the learned Counsel for the respondents that it has been rectified by the Court on obtaining a list of the properties together with a. statement of the land revenue paid by them. Ultimately only such properties have been attached which pay a total revenue of Rs. 800 a year. The learned Counsel for the appellants has put forward two arguments before us. One is that at the stage at which the application for attachment before judgment was made no application was maintainable in law; and the second is that on the merits this was not a case in which, an order for attachment before judgment could be made. On the first point we are of opinion that the contention is not sound. The language of Order 38, Rule 5, is very wide and does embrace a case like this. In this very case, supposing the facts alleged are true, and in similar cases, it can certainly not be open to the judgment-debtor to sell off his entire property in order that he might defeat the decree for money that may be passed against him under Order 34, Rule 6, Civil P.C. The learned Counsel has cited before us the case of Muhammad Inamullah Khan v. Narain Dass AIR 1915 All 277. That case was decided on its own facts and their Lordships clearly state the reasons why they thought that Order 38, Rule 5 had no application. They state
there is no suggestion that the appellant is about to dispose of the whole or any part of his property, or to move it from the jurisdiction of the Court…
3. This case therefore is no authority for the proposition that at the stage already described an application like the one made by the respondents could not be entertained. On the merits we find that the application was based on ‘an affidavit filed by one Dal Chand. In para. 4, Lal Chand says:
I solemnly affirm and state that this is quite possible that the judgment-debtors would transfer their remaining khalis property to some other person so that the petitioners may not be able to realize the remaining amount of decree and that they may put to considerable loss.
4. This certainly is not a ground described in Order 38, Rule 5 and no order of attachment before judgment could be based on such a state of facts. On behalf of the respondents we have been told that the order passed by the learned Judge was in the nature of an ad interim order made with a view to securing the property before further investigation could be made in the case. From the fact that the order was passed within eight days of the making of the application it is possible that the learned Judge was not finally disposing of the application before him. The learned Counsel for the parties are agreed that the order appealed against may be allowed to stand for the present but the case may be sent back to the Court below for an investigation into the application, on proper evidence. The object of allowing the order appealed against to stand is that if a good case is made out for attachment before judgment, the property already attached may not be alienated. We accept this suggestion on the part of counsel and send the case back with the direction that the learned Judge would take up the application of 7th September 1931, and adjudicate on it after giving the parties an opportunity to adduce such evidence by way of affidavit or otherwise, as they may be advised to produce. As the appeal on the merits was a good one we think that the appellants must have their costs in this Court, at all events. We direct accordingly. Costs in the Court below will abide the result.
