Content Provider | Supreme Court of India |
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e-ISSN | 30484839 |
Language | English |
Access Restriction | NDLI |
Subject Keyword | 1908 Code a/Civil Procedure |
Content Type | Text |
Resource Type | Law Order |
Jurisdiction | India |
Case Type | Appeal |
Court | Supreme Court of India |
Disposal Nature | Appeal Allowed |
Headnote | Code of Civil Procedure, 1908:Or. 38 r.5 - Direction to defendant to furnish security for suit claim - HELD: Power under Or. 38 r.5 is a drastic and extraordinary power - Such power should not be exercised mechanically - It should be used sparingly and strictly in accordance with Rule - Purpose of Or. 38 r.5 is not to convert an unsecured debt into a secured debt - Any attempt by a plaintiff to utilize provisions of Or. 38 r. 5 as a leverage for coercing defendant to settle the suit claim should be discouraged - Before power is exercised under Or. 38 r.5, plaintiff should show, prima facie, that his claim is bonafide and valid and also satisfy the court that defendant is about to remove or dispose of whole or part of his property, with intention of obstructing or delaying execution of any decree that may be passed against him - Courts should also keep in view the principles relating to grant of attachment before judgment* - A defendant is not debarred from dealing with his property merely because a suit is filed or about to be filed against him - Shifting of business from one premises to another or removal of machinery to another premises by itself is not a ground for granting attachment before judgment - On facts, particulars of claim in the plaint were not specific - Trial court had rejected application on ground that plaintiff had failed to make out a prime facie case - It did not, therefore, examine the question whether defendant. by shifting his machinery, was attempting to defeat any decree that may be passed - High Court ignored absence of a prima facie case and ought not to have interfered with order rejecting application - Order of High Court is set aside and that of trial court restored. |
Judge | N/A |
Neutral Citation | 2007 INSC 1171 |
Petitioner | Raman Tech. & Process Engg. Co. & Anr. |
Respondent | Solanki Traders |
SCR | [2007] 12 S.C.R. 409 |
Judgement Date | 2007-11-20 |
Case Number | 6171 |
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