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Issues Involved:
1. Whether the Court can restrain the defendant from transferring or alienating his property during the pendency of a money suit. 2. Whether the Court can grant an order of attachment before judgment or direct the defendant to furnish security in the absence of specific averments under Order 38 Rule 5 of the Code of Civil Procedure (CPC). Issue-wise Detailed Analysis: 1. Restraining the Defendant from Transferring Property in a Money Suit: The primary issue was whether a court could restrain a defendant from transferring or alienating his property during the pendency of a money suit. The court examined the provisions of Order 39 Rule 1 of the CPC, which allows for temporary injunctions if any property in dispute is in danger of being wasted, damaged, or alienated, or if the defendant threatens to dispose of his property to defraud creditors. However, the court found that the suit was for the recovery of money, and the immovable property described in Schedule 'A' of the plaint was not "property in dispute in the suit" within the meaning of Order 39 Rule 1. The subject matter of the suit was the recovery of Rs. 1 crore and odd claimed in the plaint, not the immovable property itself. Therefore, clauses (a) and (c) of Order 39 Rule 1 were inapplicable, and clause (b) required specific allegations that the defendant intended to defraud creditors, which were absent in this case. 2. Attachment Before Judgment or Furnishing Security: The second issue was whether the court could grant an order of attachment before judgment or direct the defendant to furnish security without specific averments under Order 38 Rule 5 of the CPC. The court referred to the Supreme Court's decision in Raman Tech & Process Eng. Co. v. Solanki Traders, which emphasized that the power under Order 38 Rule 5 is drastic and extraordinary and should not be exercised mechanically. The plaintiff must show that the defendant intends to obstruct or delay the execution of any decree by disposing of or removing property. The court found the plaintiff's allegations vague and insufficient to warrant such an order. There was no specific claim that the defendant was attempting to remove or dispose of property to obstruct or delay execution of a potential decree. Inherent Powers Under Section 151 CPC: The court also considered whether it could use its inherent powers under Section 151 of the CPC to grant the injunction or attachment. It referred to the Supreme Court's decision in Manohar Lal v. Rai Bahadur Rao Raja Seth Hiralal, which stated that inherent powers are to be used in exceptional circumstances where the Code provides no procedure. However, the court concluded that using inherent powers to restrict the defendant's substantive rights over his property was inappropriate in this case. The provisions of Section 94 and the relevant orders in the CPC already provided the necessary procedures for such situations. Conclusion: The court concluded that both applications filed by the plaintiff, one under Order 39 and the other under Order 38, should be dismissed as the conditions for invoking these provisions were not met. Furthermore, there was no scope for granting relief under Section 151 of the CPC. Consequently, the appeal filed by the defendants was allowed, and the appeal filed by the plaintiffs was dismissed, with no order as to costs.
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