Ashok vs Kushal
2021 Latest Caselaw 7455 MP

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                                                                  MP No.3922/2021

         High Court of Madhya Pradesh, Jabalpur
                     Bench at Indore
             Miscellaneous Petition No.3922/2021
                        (Ashok s/o Late Shri Chandmalji Sanghvi
                                         Versus
                          Kushal s/o Late Shri Chandmal Saraf)
Indore, Dated 16.11.2021
      Shri Nitin Phadke, learned counsel for the petitioner / plaintiff.

      Heard finally on the question of admission.

                                  ORDER

This miscellaneous petition under Article 227 of the

Constitution of India has been filed by the petitioner / plaintiff

against order dated 12th October, 2021 (Annexure P/1) passed in

Civil Suit No.__-B/2021 by the Civil Judge, Senior Division,

Badnawar, District Dhar (MP) whereby the petitioner's / plaintiff's

application under Order 38 Rule 5 read with Section 151 of the Code

of Civil Procedure, 1908 for attachment of the property in question

before the judgment and another application filed for ex parte order

for attachment have been rejected.

2. Learned counsel for the petitioner has submitted that while

dismissing the aforesaid applications, the Court has held that it

cannot be said that the respondent / defendant is avoiding service of

notice of the plaint.

3. Counsel has further submitted that at the most, the learned

Judge of the trial Court should have dismissed the application for ex

parte order regarding attachment of the property in question before

MP No.3922/2021

the judgment. However, the petitioner's application filed under

Order 38 Rule 5 read with Section 151 of the Code of Civil

Procedure, 1908 could not have been dismissed and ought to have

been kept for further hearing till the respondent / defendant is served.

4. Having considered the submissions and on perusal of the

record, this Court finds force with the contentions raised by the

learned counsel for the petitioner and is of the opinion that the

learned Judge of the trial Court ought not have to dismiss the

application filed by the petitioner under Order 38 Rule 5 read with

Section 151 of the Code of Civil Procedure, 1908 and it should have

been decided after the respondent / defendant is served.

5. This Court is of the opinion that so far as the other application

filed under Section 151 of the Code of Civil Procedure, 1908 for ex

parte order of attachment of the property before the decree, cannot be

found fault with.

6. In view of the same, the present petition is hereby disposed of

and the impugned order dated 12.10.2021 (Annexure P/1) so far as it

relates to dismissal of the petitioner's application filed under Order

38 Rule 5 read with Section 151 of the Code of Civil Procedure,

1908 is concerned, is hereby set aside; and the learned Judge of the

trial Court is directed to decide the same afresh, after the

respondent / defendant is served.

7. It is made clear that this Court has not reflected upon the

MP No.3922/2021

merits of the case.

8. With the aforesaid observation, Miscellaneous Petition

No.3922/2021 stands disposed of.

(Subodh Abhyankar) Judge Pithawe RC

RAMESH CHANDRA PITHWE 2021.11.17 17:51:38 +05'30'