This petition is preferred challenging the order of trial Court, whereby it rejected the application of petitioner-plaintiff preferred under Order XXXVIII Rule 5 of CPC. It was noted by the Court that property sought to be attached is already mortgaged with the bank for there being a huge debt of the bank.
Respondent herein filing the purshis vide Exh. 21 declared and specified the debt of Punjab National Bank and other Government dues and further stated that any amount if remained on pro-rata basis, the same can be paid to the Company.
Learned advocate Mr.Patel urged this Court that petitioner is aggrieved by the finding of the Court that there is no prima facie case of the petitioner. According to him, when respondents No.1 to 3 have not objected to the grant of amount after paying dues of the bank and the Government, this observation of the trial Court would surely cause grave prejudice to the case of petitioner-plaintiff .
This Court is essentially concerned with the rejection of the application of plaintiff under Order XXXVIII Rule 5 of CPC for attachment of the property before the judgement. Purshis of the respondent well takes care of anxiety of the petitioner-plaintiff. Property is admitted mortgaged with the bank with a huge debt of both of the bank and that of the Government and at this stage therefore no purpose is likely to be served entertaining such application. Apprehension of petitioner that the respondent would get away with the property, defeating the claim of the petitioner is not found tenable in these circumstances. However, it is being clarified that observations with regard to absence of prima facie case of the petitioner may not come in his way as such payment is to be made on adjudicating rights of the parties.
At this stage, learned advocate seeks expeditious trial of the suit pending before the Court concerned. No such direction be issued in this petition. However, this would not prevent the petitioner to approach the trial Court and make necessary application, if he so chooses. Without being influenced by the outcome of this petition and/or by any of the observations made hereinabove, the trial Court may consider such request, on its own merit.
Writ petition stands disposed of (Ms.Sonia Gokani,J) bina Top