Order 38 Rule 5 CPC Suit Property Cant Be Attached Mechanically Or Merely For Asking Of Plaintiff

Case: Vandana Verma V. Roop Singh & Ors.

Coram: Justice Sheel Nagu and Justice D.K. Paliwal

Case No.: CS(OS) 437/2021

Court Observation: “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.”

“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,”

“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.”

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Keywords

Order 38 Rule 5 CPC, Suit Property