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AO/59/2011 3/ 3 ORDER
IN
THE HIGH COURT OF GUJARAT AT AHMEDABAD
APPEAL
FROM ORDER No. 59 of 2011
With
CIVIL
APPLICATION No. 1878 of 2011
In
APPEAL FROM ORDER No. 59 of 2011
=========================================================
PECIFIC
EXPORTS - Appellant(s)
Versus
RAJESH
ENTERPRISE & 3 - Respondent(s)
=========================================================
Appearance
:
M/S
RJ RAWAL ASSOC. for
Appellant(s) : 1,MS SHIVYA A DESAI for Appellant(s) : 1,
None for
Respondent(s) : 1,3 - 4.
VIRAL K SHAH for Respondent(s) :
2,
=========================================================
CORAM
:
HONOURABLE
MR.JUSTICE KS JHAVERI
Date
: 21/02/2011
ORAL
ORDER
1. The
appellant herein has challenged the order dated 10.05.2010 below Ex.
52 application for attachment of property in Civil Suit No. 1616 of
2006 passed by the Chamber Judge, City Civil and Sessions Court,
Ahmedabad whereby the application was rejected and further to direct
and order attachment of the property at survey no. 193/3&4 of
village Narol, Ahmedabad.
2. It
is the case of the appellant that the property which is sought to be
sold by the respondents as stated in the advertisement dated
10.04.2010 is required to be attached because though the respondents
have interest in the said property as they are doing business there.
It is the case of the appellant that because by selling such
property, the respondents may be able to defeat the decree that may
be passed at the time of final disposal of this suit, attachment is
required to be made.
3. Learned
advocate for the appellant has submitted that the trial court has
failed to appreciate that though there is an agreement to sell, the
respondent is the owner, occupier and possessor of suit property
since it is manufacturing cloth at the process house at the property
and all plant and machinery are on the property. He has submitted
that the trial court has committed an error in rejecting the
application for attachment of property which essentially amounts to
rejecting the suit without trial and passing final decree therein.
4. This
court has heard learned advocates for the parties and perused the
papers on record. The trial court has proceeded on the footing that
the defendant prima facie does not seem to be the owner of the
property under Order 38 Rule 5 of the Civil Procedure Code. The trial
court has observed that it is not shown as to how the disposal of the
property assuming that the defendants have interest in the property
is intended to defeat the decree that may be passed in favour of the
plaintiff. However, while rejecting the Ex. 52 application, the
trial court has borne in mind the fact that the interest of the
appellant is secured in view of the fact that while considering the
summons for judgement and leave to defend application, the Court
deemed it appropriate to secure the interest of appellant by
requiring a sum of Rs. 5 lakhs which subsequently by consent was
modified to Rs. 3 lakhs which was deemed to be a sufficient security.
This court is of the opinion that the impugned order does not call
for any interference by this court.
5. In
the premises aforesaid, appeal is dismissed. In view of the same,
Civil Application stands disposed of.
(K.S.
JHAVERI, J.)
Divya//
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