Power of the Family Court to Order Attachment of Property before Judgment [Case Law]

The Code of Civil Procedure, 1908 - Order XXXVIII Rule 5 - The Family Courts Act, 1984 - Section 10 (1) - Power of the Family Court to order attachment of property before judgment.

The object of issuing attachment before judgment is to preserve the assets of the respondent and consequently to prevent the execution of prospective decree that may be passed by the court in the proceeding from being defeated. Before the court issuing an order of attachment, it must be satisfied that the respondent with the intent to obstruct or delay the execution of the decree is about to remove any part of his property from the jurisdictional limits of the court or to dispose of his assets. This satisfaction of the court found under under Rule 5 must relate to the veracity or genuineness of the claim advanced by the petitioning party in the proceedings and also to the proposed intent of the respondent to part with his assets, with a view to defeat or obstruct the execution of decree that may be passed against him. The court should be loathe to issue orders of attachment under this Rule, unless these grounds for forming satisfaction existed in the proceedings. The words “any decree that may be passed against him” indicate that it is sine qua non for the party applying for an order of attachment before judgment to show that there is reasonable probability or chance of a decree being passed in the proceeding in his favour. The existence of a probable case ascertained in favour of the applicant by the test of standard of reasonableness is called the prima facie case. The reasonable probability in the case must be understood and ascertained with reference to the veracity of the claim made by the applicant and also to the pleadings of the parties and other materials available on record at the time of the enquiry. It will be quite insensible at this stage of the proceeding to put the claim of the applicant to severe test of proof and insist for production of evidence that requires to be adduced at the stage of the trial. The expressions “by affidavit or otherwise” in Rule 5 leave the true scope of enquiry of the proceedings confined only to the examination of pleadings of the parties and relevant materials available on record at the time of enquiry. The concern of the court while examining the materials on record is to see as to whether there is reasonable probability for a decree being passed in favour of the applicant based on the claim made in the proceeding. The veracity of the claim made by the applicant in the proceeding can be said to be probable only when the court believes it to be so probable that an ordinary prudent man under the circumstances of the case would tend to act upon the supposition that it is so probable.

IN THE HIGH COURT OF KERALA AT ERNAKULAM

C.K.ABDUL REHIM & T.V.ANILKUMAR, JJ.

Mat.Appeal No.7 of 2019

Dated this the 12th day of February 2019

AGAINST THE ORDER IN I.A.No.794/18 IN OP 458/2018 of FAMILY COURT, NEDUMANGAD

APPELLANT / COUNTER PETITIONER NO.3:

KRISHNA PRASAD

BY ADV. SRI.LIJU. M.P

RESPONDENTS / PETITIONER & COUNTER PETITIONERS 1 & 2 :

VRINDARAJ AND OTHERS

J U D G M E N T

T.V. ANILKUMAR, J.

The learned counsel for the appellant was heard on admission.

2. The appellant is the 3rd respondent in O.P.No.458/2018 on the files of the Family Court, Nedumangad. The other respondents in the original petition are his son and wife. His daughter-in-law, the 1st respondent in this appeal, filed O.P.No.458/2018 seeking to recover value of gold ornaments, cash and her other assets, alleged to have been entrusted with the appellant and respondents 2 and 3 herein.

3. The Family court, in exercise of power under Order XXXVIII Rule 5 of the Code of Civil Procedure, conditionally attached before judgment 38 cents of property in survey Nos.1857/37 and 1857/37-1 of Attingal village belonging to the appellant, as per an order passed in I.A.794/2018. Though the appellant and others objected and sought to lift the attachment on the ground that the 1st respondent, the original petitioner failed to establish a prima facie case against the appellant, the plea was turned down through the impugned order, dated 23.11.2018, making the conditional order absolute. The said order passed in I.A.No.794/2018 is challenged by the sole appellant in this appeal.

4. Contention of the appellant is that, the original petition did not contain necessary allegations connecting him with any transactions relating to entrustment or misappropriation of the assets of the petitioner. It is also contended that no requisite materials were brought forth to establish any of the alleged transactions also. According to him, there is nothing on record to establish that any assets of 1st respondent were either entrusted with him or misappropriated by him. In short, substance of his contention is that, no convincing evidence was adduced to prove the genuineness of the claim advanced by the 1st respondent in the O.P. It is further urged that the averments in this original petition as regards entrustment and misappropriation are vague and indefinite. On these grounds, learned counsel for the appellant argued that the impugned order shall be set aside and property of the appellant may be relieved of the attachment.

5. Power of the Family Court to order attachment of property before judgment emerges from Order XXXVIII Rule 5 of Code of Civil Procedure, since provisions of the Code are made applicable to the Family Courts by virtue of Section 10(1) of the Family Courts Act, 1984.

6. Order XXXVIII Rule 5 of the Code of Civil Procedure reads as follows:

“5. Where defendant may be called upon to furnish security for production of property- (1) Where, at any stage of 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 his 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, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security.”

The object of issuing attachment before judgment is to preserve the assets of the respondent and consequently to prevent the execution of prospective decree that may be passed by the court in the proceeding from being defeated. Before the court issuing an order of attachment, it must be satisfied that the respondent with the intent to obstruct or delay the execution of the decree is about to remove any part of his property from the jurisdictional limits of the court or to dispose of his assets. This satisfaction of the court found under under Rule 5 must relate to the veracity or genuineness of the claim advanced by the petitioning party in the proceedings and also to the proposed intent of the respondent to part with his assets, with a view to defeat or obstruct the execution of decree that may be passed against him. The court should be loathe to issue orders of attachment under this Rule, unless these grounds for forming satisfaction existed in the proceedings.

7. The words “any decree that may be passed against him” indicate that it is sine qua non for the party applying for an order of attachment before judgment to show that there is reasonable probability or chance of a decree being passed in the proceeding in his favour. The existence of a probable case ascertained in favour of the applicant by the test of standard of reasonableness is called the prima facie case. The reasonable probability in the case must be understood and ascertained with reference to the veracity of the claim made by the applicant and also to the pleadings of the parties and other materials available on record at the time of the enquiry. It will be quite insensible at this stage of the proceeding to put the claim of the applicant to severe test of proof and insist for production of evidence that requires to be adduced at the stage of the trial. The expressions “by affidavit or otherwise” in Rule 5 leave the true scope of enquiry of the proceedings confined only to the examination of pleadings of the parties and relevant materials available on record at the time of enquiry.

8. The concern of the court while examining the materials on record is to see as to whether there is reasonable probability for a decree being passed in favour of the applicant based on the claim made in the proceeding. The veracity of the claim made by the applicant in the proceeding can be said to be probable only when the court believes it to be so probable that an ordinary prudent man under the circumstances of the case would tend to act upon the supposition that it is so probable.

9. During the course of the arguments, learned counsel for the petitioner made available a copy of original petition in O.P.No.458/2018 for our perusal. We could decipher clear allegations made out in the O.P to the effect that the assets received by the 1st respondent at the time of marriage were entrusted with her husband, the 2nd respondent herein as a trustee. Allegations would further show that using a part of these assets, a building in the name of the appellant was repaired and renovated with his knowledge. These allegations, if true, are enough to establish that the appellant was also benefited by the assets of his daughter in law. This conduct would amount to an act of misappropriation under law. Another averment connecting the appellant with the alleged act of misappropriation is that, he along with his son are still using two cars presented to the first respondent at the time of her marriage. Again, in paragraph 6 of the original petition, there is a definite plea that gold ornaments of the original petitioner were pledged in the name of her husband in a bank and a portion of the same was misutilised by the appellant for his personal use. These allegations are enough to connect the appellant with the conduct of misappropriation. The respondent has no right to insist that the applicant should prove to the hilt, the alleged act of his misappropriation at the stage of enquiry, as if it is a trial. The genuineness of the claim advanced by the respondent could be tested only at the stage of trial, having regard to the nature of allegations made and also the proof required in support of the claim.

10. The learned Judge of the Family Court has rightly observed that, there are definite allegations connecting the appellant with this alleged conduct of misappropriation and the genuineness of the claim of the respondent could be better appreciated only at the time of trial of the proceeding, having regard to the facts, circumstances and nature of proof required in the proceeding. We are satisfied that there is no error illegality or impropriety in the view taken by the Judge of the Family Court and there is no reason calling for interfering with the impugned order passed by the court below. Even otherwise also, the appeal has to necessarily fail since the impugned order does not amount to a final order under Section 19(1) of the Family Courts Act, capable of being challenged in an appeal. In any view of the matter, the materials on record do not persuade us to interfere with the reasonable view taken by the Family Court, Nedumangad.

In the circumstances, confirming the impugned order dated 23.11.2018 in I.A.794/2018 in O.P.458/2018 of the Family Court, Nedumangad, the Mat.Appeal No.7/2019 is hereby dismissed. We make it clear that we have not expressed our views on the merits of the case and the learned Judge of the Family Court will proceed with the case in accordance with law, unaffected by any of the observations made by us in this judgment.