M.R. Hariharan Nair, J. 1. Revision petitioners are the plaintiffs in a suit for specific performance and recovery of excess money received by the defendants under an agreement to sell. It was alleged that the defendants received a sum of Rs. 37,68,750/- from the first plaintiff as per an agreement that sale deeds would be executed in respect of the property of the defendants as also with regard to the property lying adjacent to the plaint schedule property. It is also alleged that the sale deeds executed by Gopakumar and Jayachandran Nair with regard to their property which were also part of the properties agreed to be soid to the plaintiffs were fake documents fraudulently created with intent to cheat the first plaintiff. The suit was therefore laid for a decree directing two sale deeds to be executed in favour of the first plaintiff with respect to the plaint schedule properties within a reasonable time to be fixed by the Court with regard to the plaint schedule properties and for recovery of Rs. 35 lakhs with 24% interest being the amount received in excess by the defendants with an alternative prayer that a decree be passed for recovery of RS. 37,68,750/- with 24% interest per annum from the date of suit. Along with the suit in LA, was also filed for restraining the respondents from alienating their properties to strangers or from inducting strangers therein till the disposal of the suit. I.A. 3124 of 1999 was also filed seeking arrest of the respondents before judgment in case they fail to furnish security for a sum of Rs. 49 lakhs. Based on the objection filed by the respondents to the said petition, it was dismissed with a cryptic order as follows :
"Defendant appeared. Hence this IA closed". It is the legality and propriety of the said order that is impugned herein. According to the learned counsel for the revision petitioners, the impugned order is defective and the Court below was bound to issue orders as contemplated in Order 38, Rule 1, C.P.C.
2. The respondents on the other hand contended that the revision is not maintainable as the impugned order is not a case decided and that in any event there is no case made out for an order of arrest before judgment.
3. Under Section 115 of the C.P.C., the revisional jurisdiction can be applied only in respect of cases which have been decided by any Court subordinate to the High Court and in which no appeal lies therefrom. In the instant case the order sought was under Order 38. Rule 1, C.P.C. Under Order 38, Rule 1, C.P.C. where the Court is satisfied by affidavit or otherwise that the defendant with intent to delay the plaintiff, or to avoid any process of the Court or to obstruct or delay the execution of any decree that may be passed against him; has absconded or left the local limits of the jurisdiction of the Court, or has disposed of or removed from the local limits of the jurisdiction of the Court his property or any part thereof or that the defendant is about to leave India under circumstances affording reasonable probability that the plaintiff will or may thereby be obstructed or delayed in the execution of any decree that may be passed against the defendant in the suit, the Court may issue a warrant to arrest the defendant and bring him before the Court to show cause why he should not furnish security for his appearance. This provision is subject to the proviso that the defendant shall not be arrested if he pays to the officer entrusted with the execution of the warrant any sum specified in the warrant as sufficient to satisfy the plaintiffs' claim; and such sum shall be held in deposit by the Court until the suit is disposed of or until the further order of the Court. Under sub-rule (2) of Order 38, C.P.C. where the defendant fails to show such cause the Court shall order him either to deposit in Court money or other property sufficient to answer the claim against him or to furnish security for his appearance at any time when called upon while the suit is pending and until satisfaction of any decree that may be passed against him in the suit, or make such order as it thinks fit in regard to the sum which may have been paid by the defendant under the proviso to the last proceeding rule, namely Rule 1.
4. Mytheen Kunju v. Azeez Kunju, (1992) 1 Ker LT 713 went into the question as to what exactly is the scope of the words "any case which has been decided". It was observed that the Court makes numerous orders during the pendency of a suit or proceeding. Only some of these will amount to "case which has been decided". The order sought for by the plaintiffs under Order 38, Rule 1 will seriously affect the right of both sides. If the petition is allowed, the plaintiffs will have an assurance that the money due under the decree that is going to be passed would be recovered in so far as the defendant has furnished security for his appearance. An order under Order 38, Rule 1 also affects the right of the defendant in so far as he will be forced to furnish security for his appearance. In the nature of the relief sought for under Order 38, Rule 1, C.P.C., I am of the view that it definitely comes under the scope of the words "case which has been decided" and that the order is revisable.
5. It is clear from a reading of Order 43, Rule 1(q) that only an order under Rule 2, Rule 3 or Rule 6 of Order 38 are appealable. Rule 6 aforementioned relates to attachment before judgment and only Rules 2 and 3 relate arrest as prayed for by the plaintiffs in the suit. It is evident from Rule 1(q) of Order 43 that an order passed under Order 38, Rule 1 is not appealable in nature though an order under Rule 2 which is to be passed after the defendant is brought before Court and where he fails to furnish security is appealable. It cannot, therefore be said that an order as passed in the case which is made before the stage of arrest is not revisable in nature.
6. What is to be done under Order 38, Rule 1 in an appropriate case would be to issue a warrant of arrest with direction to the defendant to show cause why he should not furnish security for his appearance. That opportunity to furnish security or to show cause would arise only after he is brought under arrest to the Court unless the Court decides to issue notice on the petition before proceeding to pass orders of arrest. It is well settled by decisions that an order of arrest before judgment is to be passed only where the plaintiffs are able to make out a prima facie case and on being satisfied of the ingredients with regard to possible abscondance or disposal of the properties with intent to delay or obstruct the execution of the prospective decree.
7. Aperusal of the impugned order shows that the only reason for closing the I.A. and denying the relief of arrest before judgment sought by the plaintiffs is the fact that the defendant appeared before Court. The Court below obviously has proceeded on a wrong premise. The question whether the defendant chooses to appear before the Court or not is not material for deciding the question of arrest before judgment. On the other hand the question is whether the defendant has made out a case for not furnishing security. The Court will be justified in dismissing the application only if the plaintiffs have failed to make out a case, prima facie, that the defendant, with Intent to obstruct or delay the execution of the decree is about to dispose of the whole or any part of his property or is about to remove the whole or any part of the property out of the local limits of the jurisdiction of the Court. There is no such consideration evident in the impugned order. The impugned order is hence defective and it is accordingly set aside.
8. The Court below, in the circumstances, is directed to consider the aforesaid question afresh and then decided whether warrant should be issued for arrest of the defendant. Here is a case where the defendant has chosen to enter appearance. He cannot escape from the liability for furnishing security merely by such appearance. He has further to show cause why he should not furnish security. That can be done either by showing that the plaintiff has not made out a prima facie case or that circumstances exist which would indicate that there is no possibility of the defendant's disposal of his property or removal of the same beyond the jurisdiction of the Court. The Court below is directed to call upon the defendant to discharge his burden as contemplated in Order 38, Rule 1, C.P.C. and then to pass fresh orders.
The C.R.P. is disposed of as above.
Order on C.M.P. No. 4450 of 1999 in C.R.P. No. 2138 of 1999.
9. Dismissed.