2026:HHC:9646

IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA

CMPMO Nos. 173/2023 & 238/2025

Decided on: 20.3.2026

Decided on: 31.03.2026

1. CMPMO No. 173/2023

Surender Kumar …..Petitioner

Versus

Pankaj Bansal & anr. …Respondents

2. CMPMO No. 238/2025

Surender Kumar …..Petitioner

Versus

Pankaj Bansal & anr. …Respondents

______________________________________________________________

Coram:

The Hon’ble Mr. Justice Romesh Verma, Judge.

Whether approved for reporting?

1

Yes

For the Petitioner(s): Mr. Aditya Thakur, Advocate.

For the Respondents: Mr. Vipin Pandit, Advocate.

Romesh Verma, Judge

Since common question of law and facts are involved

in these petitions (CMPMO Nos. 173/2023 & 238/2025),

1

Whether reporters of the local papers may be allowed to see the judgment? Yes.

2

therefore, they were taken up together for hearing and are being

disposed of by common judgment. However, to maintain clarity,

facts of CMPMO No. 173/2023 are taken into consideration in

detail at first.

CMPMO No. 173/2023

2 By medium of CMPMO No. 173/2023, the

petitioner/defendant, has laid challenge to the order dated

24.2.2023, as passed by the learned Civil Judge, Court No. II,

Solan, District Solan, whereby an application filed by the

plaintiffs/respondents under the provisions of Order 38 Rule 5

read with Section 151 CPC, in Civil Suit No. 37/2018, has been

allowed and the defendant/petitioner has been directed to

furnish security to the amount of Rs.8,73,183/- on or before

25.3.2023, failing which the share of defendant/petitioner in

his building, at ground floor, shop No. 3, situated at Mauja

Jawahar Park Solan will be attached.

3 The plaintiffs/respondents filed a suit (Civil Suit No.

37/2018) against the defendant/petitioner for recovery of Rs.

8,73,183/- as arrears of rent and interest thereupon upto

28.2.2018 and further future interest @ 12% p.a. on arrears of

rent till full and final payment. It was averred in the plaint that

plaintiff No.2, Maya Bansal, is owner of a building known as

Pooja Emporium. Plaintiff No.1 Pankaj Bansal, being attorney of

3

plaintiff No.2, inducted the defendant/petitioner as tenant in a

shop, situated in Pooja Emporium building, as has been

highlighted with pink colour in site plan, in the year 2000 at

monthly rental of Rs.12,000/-, which was statutorily increased

w.e.f. 28.6.2005 to Rs.13,200/-, w.e.f. 28.6.2010 to Rs.14,520/-,

w.e.f. 28.6.2013 to Rs.15,972/- and thereafter w.e.f.28.6.2016 to

Rs.17,569/-. It was submitted in the plaint that the defendant/

petitioner has purchased another shop at Circular Road Solan,

Near Modgil Ashram and shifted his business to said shop in the

month of July, 2012. The shop in question has been sub-let by

the defendant/petitioner to Raj Rani without implied consent of

the plaintiffs/respondents, qua which, rent petition has also

been filed.

4 It was averred that the defendant/petitioner has not

paid monthly rent for the last more than 6 years. Though rent

was demanded from the defendant/petitioner, however he

disclosed that he has shifted his business and intended to

purchase the shop and for that negotiations were going on, thus,

assurance was given to the plaintiffs/respondents that he would

make the payment of rent very soon and promised to vacate the

shop occupied by him as a tenant under the

plaintiffs/respondents. Therefore, in these circumstances, the

plaintiff filed suit against the defendant/petitioner, as aforesaid.

4

5 The defendant/ petitioner contested and resisted the

plaint by raising preliminary objections qua maintainability,

cause of action, suit being bad for want of better particulars,

suppression of material facts, valuation etc. On merits, stand

was taken by the defendant/respondent that he is not tenant of

the plaintiffs/respondents and the story, as projected by the

plaintiffs/respondents is incorrect. It was averred that the

plaintiffs never let out any premises to him in their building

known as Pooja Emporium. There is no relationship of landlord

and tenant between the plaintiffs and defendant in any manner.

Therefore, plea of the plaintiffs qua subletting of the premises to

Ms. Raj Rani is wrong and baseless. It was averred that Raj Rani

is mother of the defendant, but the defendant has nothing to do

with the suit premises.

6 Precisely, defence was taken by the

defendant/petitioner that there is a building known as Pooja

Emporium belonging to the plaintiffs on one side and the other

side of this building, there is a building belonging to the

government i.e. DRDA, wherein milk booth of Society is located.

Both these buildings join together and as a result of which, a

space has come up under the projections of these two buildings,

total area of which space comes out to 6.50 sq. mts. in all. The

entire space, which has been left by two side owners of the

5

building as set back area, is in the occupation and possession of

Ms. Raj Rani, wife of Sh. Manohar Lal, ever since year 1999

onwards and the said space is known as ‘Raj Dupatta Centre, as

on date. The wooden door was also installed/fixed by Ms. Raj

Rani on the entrance of the said space from the road side known

as The Mall, Solan. She has also raised pucca platform in front

of the said space. The possession of Raj Rani is actual,

peaceful, physical and without any interference from the

plaintiffs or DRDA authority or M.C. Solan ever since the year

1999 onwards. It was prayed that neither the plaintiffs nor the

DRDA nor the government of H.P. nor M.C. Solan have any right,

title or interest in and over the space in question in any manner

whatsoever nor they ever objected to the possession of Raj Rani

till date. It was further averred that the suit is to harass and

humiliate the defendant unnecessarily. All the averments as

made in the plaint were refuted and the defendant prayed for

dismissal of the suit being baseless and without any substance.

7 After filing of the written statement, during the

pendency of the suit, the plaintiffs/respondents filed an

application under Order 38 Rule 5 of CPC with a prayer that the

defendant/petitioner may be called upon to furnish bank

guarantee in the sum of Rs. 15 lac and on his failure to do so,

properties owned by the defendant/petitioner may be ordered to

6

be attached being at the disposal of the Court. It was averred in

the application that the plaintiffs/respondents have filed a suit

No. 37/ 2018 for recovery of an amount of Rs.8,73,183/- along

with future interest. The defendant/respondent had been

openly proclaiming that the amount to be recovered from him on

account of arrears of rent would not be paid by him and he

would drag the litigation to defeat the rights of the

plaintiffs/respondents. It was submitted that the

defendant/petitioner is owner of one flat, which is a part of

building, situated on land comprised in Khasra No. 4359/41,

93/821, at Mauja Ser Solan and has mortgaged the same with

Baghat Urban Cooperative Bank, Solan for an amount of

RS.25,00,000/-. He is also owner of 3/4

th share in the said flat,

on account of death of his mother Raj Rani. It was further

averred that the defendant/petitioner is also owner of portion in

a building i.e. ground floor, shop No.3, situated at Mauja

Jawahar Park, Solan and this shop has also been mortgaged

with Baghat Urban Cooperative Bank, Solan.

8 The defendant/petitioner has been openely

proclaiming that he would not pay the loan amount. Intention

of the defendant/petitioner not to pay the amount of arrears of

rent is clear from the public notice published in Punjab Kesari,

daily Hindi newspaper on 18.11.2022 under the SARFESI Act

7

has been published qua one of the properties owned by the

defendant/petitioner. The second property has also been

mortgaged and non-payment of the mortgage amount to the

same Bank clearly establishes the intention of the

defendant/petitioner to defeat the judgment and decree that may

be passed in favour of the plaintiffs/respondents or in alternate

to obstruct or delay execution of decree to be passed against

him.

9 The plaintiffs/respondents filed the said application

on 22.11.2022. On the next date, i.e. 23.11.2022 an application

under Section 151 CPC for early hearing was filed by the

plaintiffs/respondents on the ground that the

plaintiffs/respondents have reasonable apprehension that the

defendant/petitioner may take steps within a week, which may

cause loss and injury to them and would frustrate very purpose

of filing of the suit. The said application for early hearing came

up for consideration before the learned trial court on

23.11.2022, on which date, the same was allowed.

10 The defendant/petitioner filed a detailed reply to the

application under Order 38 Rule 5 CPC on 18.1.2023 by refuting

all the averments as made in the application. The averments as

made in the written statement were reiterated and relationship of

landlord and tenant between the parties was specifically denied.

8

It was averred in the reply that defendant/petitioner is going to

settle dispute with the Bank, on the basis of which public notice

has been published. It was averred that the mother of the

defendant/petitioner died on 6.2.2022 due to prolonged illness

and he had to invest most part of his earning on her treatment,

thus he could not repay the loan amount owing to which

proceedings under the SARFAESI Act were initiated against the

defendant/petitioner and now the dispute is likely to be settled

by him with the Bank very shorty. It was further averred that the

defendant/petitioner has established business at Solan city and

there is no occasion for him to leave the settled business and flee

from the jurisdiction of the Courts at Solan.

11 The plaintiffs/respondents filed rejoinder to the reply

as filed by the defendant/petitioner to the application for

attachment of the property, reiterating therein contents of the

application and denying the stand of the defendant/petitioner in

toto.

12 The learned trial court vide order dated 24.2.2023

allowed the application filed by the plaintiffs/respondents under

Order 38 Rule 5 CPC, whereby the defendant/petitioner was

directed to furnish security to the amount of Rs.8,73,183/- on

or before 25.3.2023, failing which the share of

9

defendant/petitioner in his building at ground floor, shop No.3

situated at Mauja Jawhar Park, Solan, will be attached.

CMPMO No. 238/2025

13 Now as regards facts of CMPMO No. 238/2025, this

petition arises out of order dated 2.12.2024, as passed by the

learned Civil Judge, Court No. I, Solan, District Solan, whereby

an application filed by the plaintiffs/respondents under the

provisions of Order 38 Rule 5 read with Section 151 CPC in

Civil Suit No. 62/2021, has been allowed and the

defendant/petitioner has been directed to furnish security to the

amount of Rs.8,00,000/- on or before 20.2.2025, failing which

the share of defendant/petitioner in his building at ground floor

shop No. 3, situated at Mauja Jawahar Park Solan will be

attached.

14 It would be noticed that the plaintiffs/respondents

filed a suit (Civil Suit No. 62/2021) against the

defendant/petitioner for recovery of Rs. 7, 88, 322/- as arrears of

rent and interest thereupon w.e.f. 1.3.2018 to 28.2.2021 and

further future interest @ 12% p.a. on arrears of rent till full and

final payment with regard to the same property as involved in

Civil Suit No. 37/2018 i.e. a shop, situated in Pooja Emporium

building, wherein, apart from taking averments as contained in

Civil Suit No. 37/2018 and having been discussed at length

10

while dealing with facts of CMPMO No. 173/2023, it was averred

that the defendant/petitioner has not stood by his promise to

vacate the suit premises and even did not pay rent for last 9

years prior to the period of 28.2.2018 qua which earlier suit is

pending in the competent court of law and after filing earlier civil

suit for recovery, again period of approximately 3 years is going

to pass, therefore, the defendant/petitioner in addition to

amount as claimed in C.S. No. 37/2018, is liable to pay the

following amount:-

i) Arrears of rent w.e.f. 1.3.2018 to 28.6.2019 i.e. 16

months @ Rs.17,569/- p.m. = Rs.2,81,104/-.

ii) Interest on above mentioned amount @ 12% upto

June, 2019 i.e. Rs. 23,893/-.

iii) Interest w.e.f July, 2019 to 28.2.2021 on arrears of

Rs. 2,81,104/- i.e. Rs. 56,220/-.

iv) Arrears of rent w.e.f. 28.6.2019 to 28.2.2021 i.e.

20 months @ Rs.19,326/- i.e. Rs.3,86, 250/-.

v) Interest on the above mentioned amount for 20

months as per Urban Rent Control Act = Rs.40,585/-

Total amount = Rs. 7,88,322/-

15 The defendant/ petitioner while contesting Civil Suit

No. 62/2021 reiterated the same and similar averments as were

taken in Civil Suit No.37/2018 and denied the case of the

plaintiffs/respondents in toto. Thereafter, the

plaintiffs/respondents filed an application under Order 38 Rule 5

11

of CPC with a prayer that the defendant/petitioner may be

called upon to furnish bank guarantee in the sum of Rs. 15 lac

and on his failure to do so, properties owned by the

defendant/petitioner may be ordered to be attached being at the

disposal of the Court, which application came to be allowed vide

order dated 2.12.2024, directing defendant/petitioner to furnish

security to the amount of Rs.8,00,000/- on or before 20.2.2025,

failing which the share of defendant/petitioner in his building

at ground floor shop No. 3, situated at Mauja Jawahar Park

Solan will be attached.

16 Feeling aggrieved by the impugned orders, as passed

by the learned courts below on 24.2.2023 and 2.12.2024, the

defendant/petitioner has approached this Court by filing instant

petitions.

17 It is contended by Mr. Aditya Thakur, learned counsel

appearing for the defendant/petitioner that the impugned orders

as passed by the learned courts below are erroneous and not

sustainable in the eyes of law. He has further submitted that

the courts below have not appreciated the true import of Order

38 Rule 5 CPC and have wrongly directed the

defendant/petitioner to furnish securities in both the cases. It is

contended that provisions of Order 38 Rule 5 CPD have not

12

been followed by the court below and the impugned orders have

been passed in a routine manner.

18 On the other hand, Mr. Vipin Pandit, learned counsel

appearing for the plaintiffs/respondents has defended the

impugned orders. He has submitted that the courts below have

rightly passed the impugned orders after appreciating the entire

factual matrix of the case and taking into consideration the legal

provisions of Order 38 Rule 5 CPC. He has further

submitted that the impugned orders are not required to be

disturbed or interfered with in view of the judgments passed by

the Hon’ble Supreme Court in various cases dealing with the

same issue.

19 I have heard the learned counsel for the parties and

have also gone through the case file.

20 Admittedly, the plaintiffs/respondents in both the

cases have filed suits for recovery of arrears of rent from the

defendant/petitioner. In CMPMO No. 173/2023, the

plaintiffs/respondents have claimed recovery of Rs.8,73,183/-

and interest accrued thereupon upto 28.2.2018 along with

further future interest @ 12% per annum till full and final

payment, whereas in CMPMO No. 238/2025, they have claimed

recovery of Rs.7,88,322/- and interest accrued thereupon upto

13

w.e.f. 1.3.2018 to 28.2.2021 along with further future interest @

12% per annum till full and final payment.

21 The defence of the defendant/petitioner in both the

cases is that there is no relationship of landlord and tenant inter

se the parties to the lis.

22 Mr. Vipin Pandit, Advocate, in order to make out a

case for grant of relief under the provisions of Order 38 Rule 5

CPC has taken this Court to the copy of the agreement, which

has been filed with the reply to the instant petition as Annexure

R-1, at page 120 of the paper book of CMPMO No. 173/2023. It

has been spelt out in the agreement that the agreement is made

on 29.6.2000 between Surender Kumar, son of Manohar Lal, as

tenant and Pankaj Bansal, son late Sh. C. K. Poddar, as

landlord. It has been incorporated in the agreement that

plaintiff/respondent No.1 Pankaj Bansal has rented out one

shop in Pooja Emporium building i.e. a shop, situated between

DRDA shop, Pooja Emporium Shop on front, the Mall and on

back side building of Usha Aggarwal, at monthly rental of

Rs.12,000/-. It has also been spelt out that possession of the

shop has been handed over to the tenant and that the tenant

undertakes to make payment of rent regularly, not to cause any

damage to the premises or to sublet the same to anyone else.

14

Perusal of the agreement further reveals that the agreement has

been signed by the parties and the witnesses thereto.

23 Mr. Vipan Pandit, Advocate, submits that this

agreement prima facie show the jural relationship between the

parties as landlord and tenant. It is contended by him that

story as projected by the defendant/petitioner that neither he is

tenant under the plaintiffs/respondents nor he has got any

concern to the premises in question or that he is not liable to pay

rent stands falsified on the strength of the aforesaid agreement.

The agreement is specific, unambiguous and clear and it prima

facie shows that the plaintiffs/respondents have rented out a

shop in question to the defendant/petitioner.

24 It would be apposite here to reproduce provisions of

Order 38 Rule 5 CPC, which read as under:-

“5. Where defendant may be called upon to furnish

security for production of property.—

(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 his

property from the local limits of the jurisdiction of the

Court, the Court may direct the defendant, within a

15

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.

(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 so specified.

[(4) If an order of attachment is made without

complying with the provisions of sub-rule (1) of this

rule, such attachment shall be void.”

25 The aforesaid provisions envisage that if the Court is

satisfied that the defendant with an intent to obstruct or delay

execution of the any decree that may be passed against him – is

about to dispose of the whole or any part of his property or is

about to remove the whole or any part of his property from the

local limits of the jurisdiction of the Court, the Court can direct

the defendant either to furnish security, in such sum as may be

specified by the order, to produce and place at the disposal of

the Court or to appear and show cause why he should not

furnish security. Further it has been stipulated that the plaintiff

16

shall, unless the Court otherwise directs, specify the property

required to be attached and the estimated value thereof.

26 The Hon’ble Supreme Court in Raman Tech and

Process Engg Co. vs. Solanki Traders, SC C 2008 (2) 302

has held that the object of order 38 rule 5 CPC is to prevent any

defendant from defeating the realization of the decree that may

ultimately be passed in favour of the plaintiff, either by

attempting to dispose of, or remove from the jurisdiction of the

court, his movables. The Scheme of Order 38 and the use of the

words ‘to obstruct or delay the execution of any decree that may

be passed against him’ in Rule 5 make it clear that before

exercising the power under the said Rule, the court should be

satisfied that there is a reasonable chance of a decree being

passed in the suit against the defendant. The court should be

satisfied that the plaintiff has a prima facie case. If the

averments in the plaint and the documents produced in support

of it, do not satisfy the court about the existence of a prima facie

case, the court will not go to the next stage of examining whether

the interest of the plaintiff should be protected by exercising

power under Order 38 Rule 5 CPC. It is well-settled proposition

of law that merely having a just or valid claim or a prima facie

case, will not entitle the plaintiff to an order of attachment before

judgment, unless he also establishes that the defendant is

17

attempting to remove or dispose of his assets with the intention

of defeating the decree that may be passed. Equally well settled

is the position that even where the defendant is removing or

disposing his assets, an attachment before judgment will not be

issued, if the plaintiff is not able to satisfy that he has a prima

facie case.

27 The Hon’ble Supreme Court in M/s Radha Krishan

Industries vs. State of Himachal Pradesh, AIR 2021 SC

2114 has held as follows:

“30. The decision of this Court in Raman Tech Process Engg

Co and Anr v Solanki Traders was concerned with the

power of a civil court under Order 38 Rule 5 of the CPC to

order an attachment before judgment. In that case,

proceedings had been instituted by the respondent, for the

recovery of moneys due for the supply of material to the

appellant. The plaintiff moved an application under Order

38 Rule 5, for a direction to the defendants to furnish

security for the suit claim and if they failed to do so, for

attachment before judgment. This Court described the

power of attachment before judgment in the following terms:

“5. The power under Order 38, Rule 5 Civil Procedure Code is

a drastic and extraordinary power. Such power should not be

exercised mechanically or merely for the asking. It should be

used sparingly and strictly in accordance with the Rule. The

purpose of Order 38, Rule 5 not to convert an unsecured debt

into a secured debt. Any attempt by a plaintiff to utilize the

provisions of Order 38 Rule 5 as a leverage for coercing the

defendant to settle the suit claim should be discouraged.

18

Instances are not wanting where bloated and doubtful claims

are realized by unscrupulous plaintiffs, by obtaining orders

of attachment before judgment and forcing the defendants

for out of court settlements, under threat of attachment.

6. A defendant is not debarred from dealing with his property

merely because a suit is filed or about to be filed against him.

Shifting of business from one premises to another premises

or removal of machinery to another premises by itself is not a

ground for granting attachment before judgment. A plaintiff

should show, prima facie, that his claim is bona fide and

valid and also satisfy the court that the defendant is about to

remove or dispose of the whole or part of his property, with

the intention of obstructing or delaying the execution of any

decree that may be passed against him, before power is

exercised under Order 38, Rule 5 CPC. Courts should also

keep in view the principles relating to grant of attachment

before judgment [internal citation omitted].”

28 In the present case, learned counsel for the

plaintiffs/respondents have taken this Court to the pleadings

and the documents, which clearly reveal that the

plaintiffs/respondents have got prima facie case in their favour

and the averments as made in the plaint reveal that they are

owners of the suit property and the same was rented out to the

defendant/petitioner on monthly rental of Rs.12,000/-. It has

been mentioned in the plaint that the defendant/ petitioner has

purchased another shop in the month of July, 2012 at Circular

Road Solan, Near Modgil Ashram and when the defendant was

asked to pay outstanding arrears of rent, he assured the

19

plaintiffs/respondents to repay the said amount very shortly,

however nothing was done by him as per the promise made by

him. The averments as made in the plaint coupled with copy of

the agreement makes out prima facie case in favour of the

plaintiffs/respondents for grant of relief as sought for in

application under Order 38 Rule 5 CPC.

29 The defendant/petitioner in the written statements as

well as reply to the applications filed by the

plaintiffs/respondents under Order 38 Rule 5 CPC has tried to

project that the plaintiffs/respondents are strangers and the

suits have been filed by them to harass him. It is the case of the

defendant/petitioner that neither there is any relationship of

landlord and tenant between the parties nor he is to pay any

kind of arrears of rent towards the plaintiffs. However, the

agreement placed on record falsifies defence of the

defendant/petitioner for the determination of the application

under Order 38 Rule 5 CPC. Apart from that, the plaintiffs have

been able to make out the case that the defendant/petitioner is

attempting to remove or dispose his assets with an intention to

defeat the decree that may be passed in their favour and against

him.

30 The plaintiffs/respondents filed applications under

Order 38 Rule 5 CPC on 22.11.2022 and immediately, on the

20

next date i.e. 23.11.2022, an application for early hearing was

filed by them on the ground that in case the same is not

allowed, very purpose of filing of the suit(s) would be frustrated.

31 The said application was allowed by the learned trial

court vide order dated 23.11.2022. The defendant/petitioner

filed reply to the application under Order 38 Rule 5 CPC on

18.1.2023.

32 Learned counsel for the plaintiffs/respondents has

argued that as per the averments made in the applications filed

under Order 38 Rule 5 CPC, the defendant is owner of one flat,

being a part of building, situated on land comprised in Khasra

No. 4359/41, 93/821, at Mauja Ser Solan and has mortgaged

the same with Baghat Urban Cooperative Bank, Solan for an

amount of Rs.25,00,000/-. The defendant is also owner of 3/4

th

share in the said flat, on account of death of his mother Raj

Rani. He is also owner of portion in a building i.e. ground floor

shop No.3, situated at Mauja Jawahar Park, Solan and this shop

has also been mortgaged with Baghat Urban Cooperative Bank,

Solan. The plaintiffs/respondents have averred that a public

notice was issued on 18.11.2022 in Punjab Kesari, daily Hindi

newspaper under the SARFAESI Act qua one of the properties

owned by the defendant/petitioner, which clearly establishes

intention of the defendant/petitioner to defeat the decree that

21

may be passed in favour of the plaintiffs/respondents or in

alternate to obstruct or delay execution of decree to be passed

against him.

33 In the reply to the applications, though specifically

said averments have not been denied by the

defendant/petitioner, however stand has been taken that he is

shortly going to settle dispute with the Bank, on the basis of

which public notice has been published.

34 Most important document, which has been placed on

record by the plaintiffs/respondents to make out a case for

passing an order and allowing applications under Order 38 Rule

5 CPC is copy of the sale deed, dated 10.2.2023 (Annexure R-7)

executed by the defendant/petitioner qua his share along with

his father, Manohar Lal.

35 The plaintiffs/respondents filed application under

Order 38 Rule 5 CPC on 22.11.2022 in both suits and during the

pendency of the said applications, and before passing of the

impugned orders, the defendant/petitioner sold his share in Flat

No.102, owned by him along with father on 10.2.2023. It shows

that intention of the defendant/petitioner clearly and

unambiguously is to defeat the decree that may be passed

against him.

22

36 Perusal of the said sale deed reveals that cheque

bearing No.633194 amounting to Rs. 24 lacs was paid on

27.12.2022 i.e. immediately after filing of the applications for

attachment of the properties. The demand draft amounting to

Rs.13 lac was paid on 10.2.2023 to the defendant that is before

passing of the impugned orders and during the pendency of the

applications. This document proves the case of the

plaintiffs/respondents and falsifies the defence as made by the

defendant in reply to the applications filed under Order 38 Rule

5 CPC.

37 Though, learned counsel for the petitioner has

vehemently argued that there is nothing on record to show that

his client is removing or disposing of his assets before passing

the decree, however copy of the sale deed clinches entire

controversy which shows intention of the defendant/petitioner

to be clear and unambiguous. The plaintiffs have been able to

establish prima facie case that the defendant in order to

frustrate the decree that may be passed has disposed of his

assets.

38 The learned Courts below have rightly passed the

impugned orders, whereby the defendant has been directed to

furnish security to the amount of Rs.8,73,183/- in CMPMO No.

173/2023 and Rs.8,00,000/- in CMPMO No. 238/2025. The

23

Court below have legally appreciated the controversy in

question and have rightly passed the impugned order and this

Court find no illegality or infirmity in the same.

39 The petitioner has approached this Court by invoking

jurisdiction under Article 227 of the Constitution of India and the

Hon’ble Supreme Court has categorically held that the High

Court will not act as court of appeal while exercising power

under Article 227 of the Constitution of India while adjudicating

the claim and order which has been passed by the court below.

40 In Garment Craft vs. Prakash Chand Goel, 2022

(4) SCC 181, the Hon’ble Supreme Court has held as under:

“15. Having heard the counsel for the parties, we are

clearly of the view that the impugned order is contrary to

law and cannot be sustained for several reasons, but

primarily for deviation from the limited jurisdiction exercised

by the High Court under Article 227 of the Constitution of

India. The High Court exercising supervisory jurisdiction

does not act as a court of first appeal to re-appreciate,

reweigh the evidence or facts upon which the determination

under challenge is based. Supervisory jurisdiction is not to

correct every error of fact or even a legal flaw when the final

finding is justified or can be supported. The High Court is

not to substitute its own decision on facts and conclusion,

for that of the inferior court or tribunal. The jurisdiction

exercised is in the nature of correctional jurisdiction to set

right grave dereliction of duty or flagrant abuse, violation of

fundamental principles of law or justice. The power

24

under Article 227 is exercised sparingly in appropriate

cases, like when there is no evidence at all to justify, or the

finding is so perverse that no reasonable person can

possibly come to such a conclusion that the court or tribunal

has come to. It is axiomatic that such discretionary relief

must be exercised to ensure there is no miscarriage of

justice.

16. Explaining the scope of jurisdiction under Article 227,

this Court in Estralla Rubber v. Dass Estate (P) Ltd. has

observed:-

6. The scope and ambit of exercise of power and jurisdiction

by a High Court under Article 227 of the Constitution of

India is examined and explained in a number of decisions

of this Court. The exercise of power under this article

involves a duty on the High Court to keep inferior courts

and tribunals within the bounds of their authority and to

see that they do the duty expected or required of them in a

legal manner. The High Court is not vested with any

unlimited prerogative to correct all kinds of hardship or

wrong decisions made within the limits of the jurisdiction of

the subordinate courts or tribunals. Exercise of this power

and interfering with the orders of the courts or tribunals is

restricted to cases of serious dereliction of duty and flagrant

violation of fundamental principles of law or justice, where

if the High Court does not interfere, a grave injustice

remains uncorrected. It is also well settled that the High

Court while acting under this article cannot exercise its

power as an appellate court or substitute its own judgment

in place of that of the subordinate court to correct an error,

which is not apparent on the face of the record. The High

Court can set aside or ignore the findings of facts of an

inferior court or tribunal, if there is no evidence at all to

justify or the finding is so perverse, that no reasonable

25

person can possibly come to such a conclusion, which the

court or tribunal has come to.”

41 It has been held that the power under Article 227 is

exercised sparingly in appropriate cases, like when there is no

evidence at all to justify, or the finding is so perverse that no

reasonable person can possibly come to such a conclusion that

the court or tribunal has come to. It has been held that

supervisory jurisdiction is not to correct every error of fact or

even a legal flaw, when the final finding is justified or can be

supported. The High Court is not to substitute its own decision

on facts and conclusion, for that of the inferior court or tribunal.

42 This Court is of the considered opinion that there is

no merit in the petitions and the impugned orders as passed by

the courts below are legal, valid and sustainable.

43 In view of aforesaid discussions and for the reasons

stated hereinabove, the instant petitions being devoid of any

merit are dismissed, so also the pending application (s), if any,

leaving the parties to bear their own costs.

44 Before parting, it is made clear that any observation

made here-in-above shall not be taken as an expression of

opinion on the merits of the main cases and the same shall be

26

adjudicated upon uninfluenced by any observation made here-

in-above, which are only for the purpose of the instant petitions.

(Romesh Verma)

31.03.2026 Judge

(pankaj)