High Court Division :
(Civil Revisional Jurisdiction
Sheikh Abdul Awal J
Shahidul Karim J
Mahabub Alam (Md)
…………. Plaintiff-Petitioner
vs
Liton Gosh and others
………………… Defendant- Opposite Parties
Judgment
August 4th, 2015.
Code of Civil Procedure (V of 1908)
Order XXXVIII, rule 5
Attachment before judgment-If the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him the Court is empowered to pass an order of attachment before judgment. ….. (18)
Code of Civil Procedure (V of 1908)
Order XXXVIII, rule 5
Attachment before judgment-The power of attachment of property before judgment being an extraordinary power of interfering with a party’s right to use and enjoy its own property before any decree is passed, the Court should be very circumspect in allowing such prayer and must decide the matter on the strength of the facts of each case. An application under Order XXXVIII, rule 5 of the Code for attachment before judgment docs not contain any concrete or specific allegation with specific materials to satisfy the Court that the defendant has been trying to transfer his property from the court’s jurisdiction with intent to obstruct or defeat the prospective decree or to defraud the plaintiff and to frustrate the suit, no relief can be given on such vague and general allegation…(18)
AJ Mohammad Ali with AHM Mushfiqur Rahim.
Advocates-For the Petitioner
Moudud Ahmed with Mohammad Jamal Hossain.
Advocates-For the Opposite Party No. 1
Judgment
Sheikh Abdul Awal J: This Rule was issued calling upon the opposite party No. 1 to show cause as to why the impugned Order No. IX dated 6-1-2013 passed by the learned Joint District Judge, 1st Court, Comilla in Money Suit No. 6 of 2012 rejecting the application dated 9-7-2012 under Order XXXVIII, rule 5 read with section 151 of the Code of Civil Procedure for attachment of the property which belonged to the defendant No.1 as described in the schedule of the application (Annexure-B) should not be set-aside and as to why the said property of the defendant-opposite party No. 1 should not be attached and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. Plaintiff-petitioner instituted the aforesaid suit seeking the following reliefs:
“(?) ????????? ???? ?? ??,??,??,??? (??? ???? ??? ???? ?????? ?????) ???? ?/? ?? ??? ??????? ???? ?????? ??????????? ????? ?????? ?/? ?? ????????? ???????? ?? ???? ?????? ?????? ????? ;
(?) ????? ??????? ??? ????????? ????????? ??? ????? ????? ??? ?/? ?? ?????????? ????????? ???? ?????? ?? ???, ???? ???? ?/? ?? ??????? ????? ?????? ??????? ???????? ?????????? ????? ??????? ????? ????????? ?????? ?????? ????? ????????? ???? ?????? ????? ???????? ?????;
(?) ??????? ??? ????? ?????? ???? ?????? ?? ???? ?? ??? ????? ???? ?? ???? ?/? ?? ?????????? ???????? ????? ?????? ??? ????? ??? ????? ???? ????;
(?) ????? ????? ???? ????????? ???? ?????? ??% ???? ??????????? ???????? ?????? ??? ????? ??????? ?????? ?????? ????? ;
(?) ????????? ?????? ??????? ? ????????? ?????? ??? ????? ??????? ??? ?? ?????? ?????? ????? ;
(?) ????? ????????? ? ??????? ????? ?????? ???? ?????? ?? ?? ??? ????? ? ???????? ????? ???? ????? ?????? ??? ????? ??????? ?/? ?? ????????? ??????/???? ?????? ????? ????????? ??????? ????? ???? ? ????? ???????????? ???????? ???????? ????? ????? ????? ???”
3. Immediately, after institution of the suit the plaintiff-petitioner filed an application under Order XXXVIII, rule 5 read with section 151 of the Code of Civil Procedure for attachment of the property which belonged to the defendant No. 1 before judgment on the allegation that the defendant in order to avoid payment of the plaintiff, is trying to transfer his properties described in the schedule of the application.
4. The defendant No. 1 resisted the said application by filing written objection on 11-9-2012 contending, inter-alia, that the application for attachment is based on some false, vague and indefinite allegations, which fails to make out any definite case that he defendant is trying to transfer his property with intent to obstruct or delay the execution of the decree that might be passed against him.
5. The learned Joint District Judge, 1st Court, Comilla after hearing both the sides by the impugned order dated 6-1-2013 rejected the application on the finding that the plaintiff having failed to make out a prima-facie case that defendant is trying to transfer his properties described in the schedule of the application with intent to obstruct or delay the execution of the decree that might be passed against him.
6. Feeling aggrieved thereby the plaintiff-petitioner has come before this Court and obtained the present Rule.
7. Mr AJ Mohammad Ali, the learned Advocate appearing on behalf of the plaintiff petitioner submits that the learned trial Judge erred in law in rejecting the application under Order XXXVIII, rule 5 of the Code of Civil Procedure for attachment of the property which belonged to the defendant No. 1 before judgment without properly considering the facts of the case and the case made out by the petitioner and the same has occasioned failure of justice. Mr Mohammad Ali, in the course of his argument takes us through the plaint of the suit and other materials on record including the application under Order XXXVIII, rule 5 of the Code of Civil Procedure (Annexure-B) and then submits that the defendant No. 1 was a petty employee under the plaintiff- petitioner, who in the changing political circumstances of the country in 2007 took control over the business of the petitioner’s company and misappropriated huge amount of money of the petitioner’s company and thereafter, he purchased some properties and deposited huge amount of money in his bank accounts described in the schedule of the application, now he having realized the difficulties is trying to leave the country after transferring his property as’ well as withdrawing his money from bank with intent to grab the same and also to obstruct or delay the execution of the decree that might be passed against him.
8. Finally, Mr AJ Mohammad Ali, submits that the plaintiff made out a very clear case of attachment before judgment and the conduct of defendant No. 1 and the circumstances on record clearly showed that if the attachment order is not made, there would be nothing left for the plaintiff to satisfy the decree.
9. Mr Moudud Ahmed, the learned Advocate appearing on behalf of the defendant opposite party No.1, on the other hand, supports the impugned order and contends that the learned Joint District Judge was perfectly justified in refusing the petitioner’s prayer for attachment before judgment on the clear finding that the plaintiff failed to make out any case that the defendant is trying to remove his property with intent to obstruct or delay the execution of the decree that might be passed against him. Mr Moudud Ahmed further submits that the allegations made in the application under Order XXXVIII, rule 5 of the Code of Civil Procedure based on bundle of vague, unspecified facts and no order of attachment before judgment can be passed on such vague, general and unspecified allegations or facts.
10. Drawing support for his submissions, the learned Advocate referred to some decisions reported in 27 DLR 256, AIR 1986 Page 87, 46 DLR 44, 17 BLD (AD) 223 = 50 DLR (AD) 21,27 DLR 156, 31 DLR (AD) 112 and 50 DLR (AD) 21.
11. We have heard the learned Advocates for both the sides at length and perused the revisional application, counter affidavit dated 29-7-2015, supplementary affidavit dated 2-8-2015 along with other connected papers as filed thereto. Now, only question that is to be decided in the rule is, whether the Joint District Judge has committed any illegality in refusing the prayer for attachment before judgment.
12. In approaching the controversy it will be profitable to notice the provision contained in Order XXXVIII, rule 5 of the Code of Civil Procedure, which is quoted hereunder:
Attachment before judgment:
5. (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of the property from the local limits of the jurisdiction of the Court;
the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, of such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property be specified.
13. A reading of the above quoted provision transpires that if the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him the Court is empowered to pass an order of attachment before judgment.
14. In this case it appears that the petitioner herein as plaintiff filed Money Suit No. 6 of 2012 in the Court of Joint District Judge, 1st Court, Comilla claiming an amount of Taka 20,80,50,000 against the defendant opposite party No. 1, Liton Gosh and just after institution of the suit the plaintiff-petitioner filed an application under Order XXXVIII, rule 5 read with section 151 of the Code of Civil Procedure for attachment of the property which belonged to the defendant No. 1 before judgment on the allegation that trying to transfer his properties described in the schedule of the application.
15. In this connection, we feel it necessary to quote hereunder the material portion of the application under Order XXXVIII, rule 5 read with section 151 of the Code of Civil Procedure for having a better view of the dispute in question. Paragraph No. 8 of the application under Order XXXVIII, rule 5 of the Code reads as follows:
“????????? ? ?? ?????? ???? ????????? ????? ???? ???? ???? ????? ????? ????? ????????? ???????? ??????? ????????? ????? ??? ???????? ????? ????? ????? ?????? ?????? ???????? ????????? ? ?? ?????? ???????? ?????????-? ??? ???? ??????? ??? ????? ????????? ???????? ???? ?????? ????? ???????? ????? ????? ????????? ????????? ?????? ???? ??? ?? ????????? ??????? ??? ?????? ????? ??????? ????? ???? ????? ????? ??? ???? ??? ??????? ???? ?????? ????? ????? ?????? ??? ???? ???? ??????? ???????? ????? ??? ?? ????? ? ?? ??????? ??????? ????? ????????? ? ?????? ????? ???? ?????????? ???? ???? ?????? ??????? ? ?? ???????? ?????? ???????? ??????? ???? ??????? ?????? ???? ?????????? ???? ???? ???? ??????? ????? ???????”
16. Reading the application under Order XXXVIII, rule 5 of the Code order as a whole, we find that there is no specific particulars as to when and from whom or from which source the plaintiff side came to know that the defendant No. 1 is trying to transfer his property or withdrawing his money from bank with intent to obstruct or delay the execution of the decree that might be passed against him.
17. On a careful perusal of the application, it appears to us that the plaintiff’s application under Order XXXVIII, rule 5 of the Code of Civil Procedure does not disclose any particulars in support of the allegation and in that view of the matter the learned Joint District Judge was perfectly justified in rejecting the petitioner’s application for attachment before judgment.
18. The power of attachment of property before judgment being an extraordinary power of interfering with a party’s right to use and enjoy its own property before any decree is passed, the Court should be very circumspect in allowing such prayer and must decide the matter on the strength of the facts of each case.
In this case, we have already indicated that the application under Order XXXVIII, rule 5 of the Code of Civil Procedure for attachment before judgment does not contain any concrete or specific allegation with specific materials to satisfy the Court that the defendant has been trying to transfer his property from the court’s jurisdiction with intent to obstruct or defeat the prospective decree or to defraud the plaintiff and to frustrate the suit, no relief can be given on such vague and general allegation.
Therefore, we find no substance in either of the contentions as raised by the learned Advocate for the petitioner.
19. The learned Joint District Judge appears to have considered all the material aspects of the case and justly rejected the application for attachment before judgment by the impugned order, we find no reason to interfere therewith.
20. In the result, the Rule is discharged without any order as to costs. The order of attachment passed earlier by this Court stands vacated.
Since the instant suit is a long pending case the trial Court is directed to dispose of the case as early as possible preferably within 6 months from the date of receipt of the order.
Let a copy of this judgment be communicated to the Court concerned at once.
(Civil Revisional Jurisdiction
Sheikh Abdul Awal J
Shahidul Karim J
Mahabub Alam (Md)
…………. Plaintiff-Petitioner
vs
Liton Gosh and others
………………… Defendant- Opposite Parties
Judgment
August 4th, 2015.
Code of Civil Procedure (V of 1908)
Order XXXVIII, rule 5
Attachment before judgment-If the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him the Court is empowered to pass an order of attachment before judgment. ….. (18)
Code of Civil Procedure (V of 1908)
Order XXXVIII, rule 5
Attachment before judgment-The power of attachment of property before judgment being an extraordinary power of interfering with a party’s right to use and enjoy its own property before any decree is passed, the Court should be very circumspect in allowing such prayer and must decide the matter on the strength of the facts of each case. An application under Order XXXVIII, rule 5 of the Code for attachment before judgment docs not contain any concrete or specific allegation with specific materials to satisfy the Court that the defendant has been trying to transfer his property from the court’s jurisdiction with intent to obstruct or defeat the prospective decree or to defraud the plaintiff and to frustrate the suit, no relief can be given on such vague and general allegation…(18)
AJ Mohammad Ali with AHM Mushfiqur Rahim.
Advocates-For the Petitioner
Moudud Ahmed with Mohammad Jamal Hossain.
Advocates-For the Opposite Party No. 1
Judgment
Sheikh Abdul Awal J: This Rule was issued calling upon the opposite party No. 1 to show cause as to why the impugned Order No. IX dated 6-1-2013 passed by the learned Joint District Judge, 1st Court, Comilla in Money Suit No. 6 of 2012 rejecting the application dated 9-7-2012 under Order XXXVIII, rule 5 read with section 151 of the Code of Civil Procedure for attachment of the property which belonged to the defendant No.1 as described in the schedule of the application (Annexure-B) should not be set-aside and as to why the said property of the defendant-opposite party No. 1 should not be attached and/or such other or further order or orders passed as to this Court may seem fit and proper.
2. Plaintiff-petitioner instituted the aforesaid suit seeking the following reliefs:
“(?) ????????? ???? ?? ??,??,??,??? (??? ???? ??? ???? ?????? ?????) ???? ?/? ?? ??? ??????? ???? ?????? ??????????? ????? ?????? ?/? ?? ????????? ???????? ?? ???? ?????? ?????? ????? ;
(?) ????? ??????? ??? ????????? ????????? ??? ????? ????? ??? ?/? ?? ?????????? ????????? ???? ?????? ?? ???, ???? ???? ?/? ?? ??????? ????? ?????? ??????? ???????? ?????????? ????? ??????? ????? ????????? ?????? ?????? ????? ????????? ???? ?????? ????? ???????? ?????;
(?) ??????? ??? ????? ?????? ???? ?????? ?? ???? ?? ??? ????? ???? ?? ???? ?/? ?? ?????????? ???????? ????? ?????? ??? ????? ??? ????? ???? ????;
(?) ????? ????? ???? ????????? ???? ?????? ??% ???? ??????????? ???????? ?????? ??? ????? ??????? ?????? ?????? ????? ;
(?) ????????? ?????? ??????? ? ????????? ?????? ??? ????? ??????? ??? ?? ?????? ?????? ????? ;
(?) ????? ????????? ? ??????? ????? ?????? ???? ?????? ?? ?? ??? ????? ? ???????? ????? ???? ????? ?????? ??? ????? ??????? ?/? ?? ????????? ??????/???? ?????? ????? ????????? ??????? ????? ???? ? ????? ???????????? ???????? ???????? ????? ????? ????? ???”
3. Immediately, after institution of the suit the plaintiff-petitioner filed an application under Order XXXVIII, rule 5 read with section 151 of the Code of Civil Procedure for attachment of the property which belonged to the defendant No. 1 before judgment on the allegation that the defendant in order to avoid payment of the plaintiff, is trying to transfer his properties described in the schedule of the application.
4. The defendant No. 1 resisted the said application by filing written objection on 11-9-2012 contending, inter-alia, that the application for attachment is based on some false, vague and indefinite allegations, which fails to make out any definite case that he defendant is trying to transfer his property with intent to obstruct or delay the execution of the decree that might be passed against him.
5. The learned Joint District Judge, 1st Court, Comilla after hearing both the sides by the impugned order dated 6-1-2013 rejected the application on the finding that the plaintiff having failed to make out a prima-facie case that defendant is trying to transfer his properties described in the schedule of the application with intent to obstruct or delay the execution of the decree that might be passed against him.
6. Feeling aggrieved thereby the plaintiff-petitioner has come before this Court and obtained the present Rule.
7. Mr AJ Mohammad Ali, the learned Advocate appearing on behalf of the plaintiff petitioner submits that the learned trial Judge erred in law in rejecting the application under Order XXXVIII, rule 5 of the Code of Civil Procedure for attachment of the property which belonged to the defendant No. 1 before judgment without properly considering the facts of the case and the case made out by the petitioner and the same has occasioned failure of justice. Mr Mohammad Ali, in the course of his argument takes us through the plaint of the suit and other materials on record including the application under Order XXXVIII, rule 5 of the Code of Civil Procedure (Annexure-B) and then submits that the defendant No. 1 was a petty employee under the plaintiff- petitioner, who in the changing political circumstances of the country in 2007 took control over the business of the petitioner’s company and misappropriated huge amount of money of the petitioner’s company and thereafter, he purchased some properties and deposited huge amount of money in his bank accounts described in the schedule of the application, now he having realized the difficulties is trying to leave the country after transferring his property as’ well as withdrawing his money from bank with intent to grab the same and also to obstruct or delay the execution of the decree that might be passed against him.
8. Finally, Mr AJ Mohammad Ali, submits that the plaintiff made out a very clear case of attachment before judgment and the conduct of defendant No. 1 and the circumstances on record clearly showed that if the attachment order is not made, there would be nothing left for the plaintiff to satisfy the decree.
9. Mr Moudud Ahmed, the learned Advocate appearing on behalf of the defendant opposite party No.1, on the other hand, supports the impugned order and contends that the learned Joint District Judge was perfectly justified in refusing the petitioner’s prayer for attachment before judgment on the clear finding that the plaintiff failed to make out any case that the defendant is trying to remove his property with intent to obstruct or delay the execution of the decree that might be passed against him. Mr Moudud Ahmed further submits that the allegations made in the application under Order XXXVIII, rule 5 of the Code of Civil Procedure based on bundle of vague, unspecified facts and no order of attachment before judgment can be passed on such vague, general and unspecified allegations or facts.
10. Drawing support for his submissions, the learned Advocate referred to some decisions reported in 27 DLR 256, AIR 1986 Page 87, 46 DLR 44, 17 BLD (AD) 223 = 50 DLR (AD) 21,27 DLR 156, 31 DLR (AD) 112 and 50 DLR (AD) 21.
11. We have heard the learned Advocates for both the sides at length and perused the revisional application, counter affidavit dated 29-7-2015, supplementary affidavit dated 2-8-2015 along with other connected papers as filed thereto. Now, only question that is to be decided in the rule is, whether the Joint District Judge has committed any illegality in refusing the prayer for attachment before judgment.
12. In approaching the controversy it will be profitable to notice the provision contained in Order XXXVIII, rule 5 of the Code of Civil Procedure, which is quoted hereunder:
Attachment before judgment:
5. (1) Where, at any stage of a suit, the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him,-
(a) is about to dispose of the whole or any part of his property, or
(b) is about to remove the whole or any part of the property from the local limits of the jurisdiction of the Court;
the Court may direct the defendant, within a time to be fixed by it, either to furnish security, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, of such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.
(2) The plaintiff shall, unless the Court otherwise directs, specify the property required to be attached and the estimated value thereof.
(3) The Court may also in the order direct the conditional attachment of the whole or any portion of the property be specified.
13. A reading of the above quoted provision transpires that if the Court is satisfied, by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be passed against him the Court is empowered to pass an order of attachment before judgment.
14. In this case it appears that the petitioner herein as plaintiff filed Money Suit No. 6 of 2012 in the Court of Joint District Judge, 1st Court, Comilla claiming an amount of Taka 20,80,50,000 against the defendant opposite party No. 1, Liton Gosh and just after institution of the suit the plaintiff-petitioner filed an application under Order XXXVIII, rule 5 read with section 151 of the Code of Civil Procedure for attachment of the property which belonged to the defendant No. 1 before judgment on the allegation that trying to transfer his properties described in the schedule of the application.
15. In this connection, we feel it necessary to quote hereunder the material portion of the application under Order XXXVIII, rule 5 read with section 151 of the Code of Civil Procedure for having a better view of the dispute in question. Paragraph No. 8 of the application under Order XXXVIII, rule 5 of the Code reads as follows:
“????????? ? ?? ?????? ???? ????????? ????? ???? ???? ???? ????? ????? ????? ????????? ???????? ??????? ????????? ????? ??? ???????? ????? ????? ????? ?????? ?????? ???????? ????????? ? ?? ?????? ???????? ?????????-? ??? ???? ??????? ??? ????? ????????? ???????? ???? ?????? ????? ???????? ????? ????? ????????? ????????? ?????? ???? ??? ?? ????????? ??????? ??? ?????? ????? ??????? ????? ???? ????? ????? ??? ???? ??? ??????? ???? ?????? ????? ????? ?????? ??? ???? ???? ??????? ???????? ????? ??? ?? ????? ? ?? ??????? ??????? ????? ????????? ? ?????? ????? ???? ?????????? ???? ???? ?????? ??????? ? ?? ???????? ?????? ???????? ??????? ???? ??????? ?????? ???? ?????????? ???? ???? ???? ??????? ????? ???????”
16. Reading the application under Order XXXVIII, rule 5 of the Code order as a whole, we find that there is no specific particulars as to when and from whom or from which source the plaintiff side came to know that the defendant No. 1 is trying to transfer his property or withdrawing his money from bank with intent to obstruct or delay the execution of the decree that might be passed against him.
17. On a careful perusal of the application, it appears to us that the plaintiff’s application under Order XXXVIII, rule 5 of the Code of Civil Procedure does not disclose any particulars in support of the allegation and in that view of the matter the learned Joint District Judge was perfectly justified in rejecting the petitioner’s application for attachment before judgment.
18. The power of attachment of property before judgment being an extraordinary power of interfering with a party’s right to use and enjoy its own property before any decree is passed, the Court should be very circumspect in allowing such prayer and must decide the matter on the strength of the facts of each case.
In this case, we have already indicated that the application under Order XXXVIII, rule 5 of the Code of Civil Procedure for attachment before judgment does not contain any concrete or specific allegation with specific materials to satisfy the Court that the defendant has been trying to transfer his property from the court’s jurisdiction with intent to obstruct or defeat the prospective decree or to defraud the plaintiff and to frustrate the suit, no relief can be given on such vague and general allegation.
Therefore, we find no substance in either of the contentions as raised by the learned Advocate for the petitioner.
19. The learned Joint District Judge appears to have considered all the material aspects of the case and justly rejected the application for attachment before judgment by the impugned order, we find no reason to interfere therewith.
20. In the result, the Rule is discharged without any order as to costs. The order of attachment passed earlier by this Court stands vacated.
Since the instant suit is a long pending case the trial Court is directed to dispose of the case as early as possible preferably within 6 months from the date of receipt of the order.
Let a copy of this judgment be communicated to the Court concerned at once.
