Order 38 Rule 5 CPC | Suit Property Can't Be Attached Mechanically Or Merely For Asking Of Plaintiff: Delhi High Court

The Delhi High Court has observed that the power under Order XXXVIII Rule 5 of Code of Civil Procedure cannot be exercised by High Court mechanically or merely for the asking of plaintiff to the suit.

Justice Amit Bansal observed,

"provisions of Order XXXVIII Rule 5 of the CPC have to be used sparingly and that the plaintiff has to satisfy the Court that the defendant is seeking to remove or dispose of whole or part of his property with the intention of obstructing or delaying the execution of the decree that may be passed against him."

The Bench took note of the Supreme Court's judgment in Raman Tech. & Process Engg. Co. & Anr. Vs. Solanki Traders, (2008) 2 SCC 302, where it was held that purpose of Order 38 Rule 5 is not to convert an unsecured debt into a secured debt. Any attempt by a plaintiff to utilise the provisions of Order 38 Rule 5 as a leverage for coercing the defendant to settle the suit claim should be discouraged.

The High Court was dealing with an application filed by the plaintiff in a suit seeking a direction that the defendants be restrained from carrying out construction work in the suit property and be restrained from selling, disposing or creating any third party interest in the property.

The application under Order XXXVIII Rule 5 of the CPC was filed by the plaintiffs for the defendants to be asked to show why the suit property should not be attached, unless the defendants deposit the claimed amount together with costs of the suit or furnish security for the same.

It was the stand of the plaintiff that fraud was played by the defendants no.1 to 4, who in collusion with defendant no.5, obtained the suit property. It was argued that the defendant no.5 in collusion with defendants no.1 to 4 did not vacate the property and therefore, it resulted in the defendants no.1 to 4 coercing the plaintiff to sell the suit property at a value, which was much less than what was agreed upon.

On the other hand, defendants no.1 to 4 had denied that there was fraud played on the plaintiff and that there was any sort of collusion between them and the defendant no.5.

"I am of the view that in the present case, the plaintiff has failed to make out a prima facie case for grant of temporary injunction, restraining the defendants from carrying out construction work in the suit property and from selling, disposing or creating any third party interest in the suit property. At best, the case of the plaintiff is with regard to the deficient amount of consideration of Rs.95,00,000/-, which is a monetary claim. If the plaintiff succeeds in the present suit she would be entitled to recover the aforesaid amount from the defendants," the Court said.

While the Court was of the view that no case for grant of interim injunction was made out, it discussed that law with regards to the provisions of Order XXXVIII Rule 5 of CPC.

The Court referred to plethora of Supreme Court judgments wherein it was observed that the provisions of Order XXXVIII Rule 5 of the CPC have to be used sparingly and that the plaintiff has to satisfy the Court that the defendant is seeking to remove or dispose of whole or part of his property with the intention of obstructing or delaying the execution of the decree that may be passed against him.

Accordingly, the Court observed thus:

"In light of the principles expounded in the judgments aforesaid, none of the aforesaid parameters for granting attachment of the suit property under Order XXXVIII Rule 5 of the CPC are fulfilled in the present case. As held above by me, the plaintiff has failed to make out a prima facie case for grant of interim injunction under the provisions of Order XXXIX Rules 1 and 2 of the CPC. Resultantly, no prima facie case is made out by the plaintiff for grant of attachment of the suit property under the provisions of Order XXXVIII Rule 5 of the CPC."

"Furthermore, the application filed on behalf of the plaintiff is bereft of any details as to how relief under Order XXXVIII Rule 5 of the CPC can be granted in her favour as there are no material particulars pleaded in this regard. Such power cannot not be exercised by this Court mechanically or merely for the asking of the plaintiff."

Accordingly, the Court dismissed the applications and posted the the matter for framing of issues on 4th May, 2022.

Case Title: VANDANA VERMA v. ROOP SINGH & ORS.

Citation: 2022 LiveLaw (Del) 252

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