Gauhati High Court
Sadeque Ahmed Laskar @ Sadu vs Mustt Afsara Begum Barlaskar on 7 September, 2022
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GAHC010082742022
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : CRP(IO)/90/2022
SADEQUE AHMED LASKAR @ SADU
S/O. NASHIR UDDIN LASKAR, R/O. 2ND LINK ROAD, WARD NO.16,
SILCHAR, P.O. LINK ROAD, DIST. CACHAR, ASSAM, PIN-788006.
VERSUS
MUSTT AFSARA BEGUM BARLASKAR
W/O. HAFIJUR RAHMAN BARLASKAR, MALUGRAM RAHMAN BARI,
WORD NO. 1, SILCHAR, CACHAR, ASSAM, PIN-788001.
Advocate for the Petitioner : MR. I ALAM
Advocate for the Respondent : MR. T A CHOUDHURY
BEFORE
THE HON'BLE MR. JUSTICE ARUN DEV CHOUDHURY
Order
07.09.2022
Heard Mr. BJ Ghosh, learned counsel for the petitioner. Also heard Mr. TA
Choudhury, learned counsel for the respondent.
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2. The present petition is filed under Article 227 of Constitution of India
assailing the order dated 15.12.2021, passed in Misc (J) Case No. 98/2021 by
the learned Civil Judge No. 1, Cachar at Silchar in Money Suit No. 07/2021.
3. The present respondent as plaintiff filed Money Suit No. 07/2021 praying
for a decree of a sum of Rs.25,10,000/- only with interest. During the pendency
of the suit, the plaintiff on 28.09.2021 filed an application under Rule 118 C of
Gauhati High Court Civil Rules read with Section 151 of CPC with a prayer that a
direction be issued to the defendant to disclose his assets on oath to the extent
that he is being made liable in the instant suit and with a further prayer to direct
to provide security to ensure satisfaction of the decree which may be passed
against him.
4. The basis of such prayer was that the plaintiff had reliably learnt as a
decree may be passed against the present petitioner, he is trying to fraudulently
dispose of his assets and property to defraud the plaintiff.
5. Though dates were fixed for filing objection, the present petitioner/
defendant did not file any objection. Subsequently, the learned Munsiff has
passed the impugned order directing the present defendant to disclose his
assets to the satisfaction of the plaintiff/ petitioner's claim by affidavit.
6. There is no quarrel in the proposition of law that trial Judge trying a suit is
empowered at any stage of suit, when satisfied by affidavit or otherwise that
the defendant with intent to obstruct or delay execution of any decree that may
be passed against him, to direct the defendant to furnish security sufficient to
satisfy the decree that may be passed or to direct to disclose his properties.
Such power and jurisdiction is granted to the learned trial court under Order 38
Rule 5 of the CPC.
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7. In the present case though the learned Munsiff has passed the order
directing the defendant to disclose his assets, however, a reading of the order,
does not disclose any satisfaction on the part of the Munsiff required under the
provision of Order 38 Rule 5 of the CPC and no reason is cited for which the
learned trial court has came to such satisfaction that the defendant is likely to
dispose of his property. The learned trial court quoted a judgment of the
Hon'ble Apex Court in Rahul S Shah vs Griendra Kr. Gandhi and Others and took
a view that the court is having such power to do. There is no dispute that the
trial court is having such power. But such power should be exercised with laid
down parameter after having satisfaction and giving reason for such satisfaction
which the learned trial court has failed to do in this case.
8. In view of the aforesaid, this court is inclined to set aside the impugned
order dated 15.12.2021 passed in Misc (J) Case No. 98/2021 by the learned Civil
Judge No. 1, Cachar at Silchar and accordingly the same is set aside.
9. However, it is made clear that the learned trial court shall pass a fresh
order with reason after hearing both the parties and in conformity with Order 38
Rule 5 of the CPC.
10. It is made clear that this court has not entered into the merit of the
petition filed by the plaintiff and the learned trail court is at liberty to pass a
fresh order on merit and in term of Order 38 Rule 5 of the CPC.
JUDGE
Comparing Assistant
