IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA CMPMO No.242 of 2024 Decided on 19th November, 2025 Sh. Virender Kumar and another …Petitioners Versus Shashi Awasthi …Respondent Coram Hon’ble Mr. Justice Ajay Mohan Goel, Judge 1Whether approved for reporting? For the petitioners: Mr. Janesh Mahajan, Advocate. For the respondent: Mr. Gurmeet Bhardwaj, Advocate. Ajay Mohan Goel, Judge (Oral) By way of this petition, the petitioners have assailed the order passed by the learned Trial Court, in terms whereof, the application filed under Order 38 Rule 5 of the Civil Procedure Code by the present petitioners stands dismissed. 2. Brief facts necessary for the adjudication of this petition are that the petitioners have filed a suit for recovery of Rs.83,29,497/- alongwith interest pendente lite and future on the ground that amount was lended by the petitioners to the respondent in lieu of handing over of a Petrol Pump being operated by the respondent, as the respondent was facing financial crisis, but later on the respondent resiled from his act 2 despite receiving the money from the petitioners. By way of the written statement, the respondent/defendant denied the claim of the petitioners/plaintiffs. 3. During the pendency of this suit, an application was filed under Order 38 Rule 5 of the Civil Procedure Code by the petitioners/plaintiffs, contending therein that as the petitioners were apprehending that in order to defeat the decree that was likely to be passed against the respondent/defendant, he was transferring the property owned by him in favour of his wife, therefore, the property of the respondent/defendant be attached. 4. The application was opposed inter alia on the ground that neither there was any merit in the Civil Suit nor otherwise the defendant was disposing whole or any part of the property. 5. In terms of the impugned order, this application has been dismissed by the learned Trial Court by holding that the powers vested under Order 38 Rule 5 are drastic and extraordinary and they are not to be mechanically used, therefore, as no case was made out for the exercise of the power, the application deserved rejection. It was also observed by the learned Trial Court that a counter claim stood filed by the 3 defendant also against the plaintiffs. 6. I have heard learned counsel for the parties and have also carefully gone through the impugned order as well as other documents on record. 7. A perusal of the reply that has been filed by the respondent to the application, filed under Order 38 Rule 5 of the Civil Procedure Code, demonstrates that it was categorically mentioned therein by the defendant that the defendant was not disposing whole or any part of this property. 8. This Court made an observation that in light of the stand taken by the defendant, this petition can be disposed of by observing that the defendant shall not dispose of whole or any part of this property except with the leave of the Court i.e., the Trial Court and same was agreed upon by the learned counsel for the parties. 9. Accordingly, this petition is disposed of by modifying order dated 02.04.2024 by observing that the defendant/respondent shall not dispose of whole or any part of this property except with the leave of the Trial Court and if any such application is filed by the defendant before the learned Trial 4 Court, then, the learned Trial Court shall dispose of the same in accordance with law, after hearing the plaintiffs. (Ajay Mohan Goel) Judge November 19, 2025 (Vinod)