IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE M.SASIDHARAN NAMBIAR TUESDAY, THE 2ND SEPTEMBER 2008 / 11TH BHADRA 1930 WP(C).No. 26435 of 2008(V) -------------------------- I.A.No.4284/2008 IN O.S.No.777/2008 OF THE 1 ADDL.SUB COURT, THIRUVANANTHAPURAM ------------------- PETITIONER: -------------- K.J.MOHANAN NAIR, S/O.JANARDHANAN PILLAI HINDU, AGED ABOUT 56 YEARS, RESIDING AT SIVA KRISHNA NIVAS, G.J.P.TOWERS, MURINJAPALAM, MEDICAL COLLEGE, THIRUVANANTHAPURAM. BY ADV. SRI.R.S.KALKURA SRI.M.S.KALESH SRI.HARISH GOPUNATH SRI.VINAY MENON.V. SRI.AJAY.M RESPONDENTS: ----------------- 1. M/S.NEST INVESTMENT SOLUTIONS REG.NO.1749/07, REGD.OFFICE AT T.C.11/716(4), ROOM NO.214, MUNDAKKAL ARCADE, CHALAKUZHY LANE, MEDICAL COLLEGE P.O., TVM, REP.BY ITS MANAGING PARTNER, J.R.SABARINATH, S/O.V.RAJAN, R/AT SABARI NIVAS, KODANGAVILA P.O., ARALUMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM. 2. J.R.SABARINATH, S/O.V.RAJAN, HINDU, AGED ABOUT 25 YEARS, RESIDING AT SABARI NIVAS, KODANGAVILA P.O., ARALUMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM. 3. V.RAJAN, HINDU AGED ABOUT 58 YEARS, RESIDING AT SABARI NIVAS, KODANGAVILA P.O. ARALUMOODU, NEYYATTINKARA, THIRUVANANTHAPURAM. 4. MAHESWARAN NAIR, S/O.PARAMU PILLAI, HINDU, AGED ABOUT 64 YEARS, RESIDING AT "KIRAN", MANNAMOOLA, PEROORKADA, THIRUVANANTHAPURAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: M.SASIDHARAN NAMBIAR, J. ------------------------------- W.P.(C) No.26435 of 2008 ------------------------------- Dated this the 2nd September, 2008. J U D G M E N T Petitioner is the plaintiff and respondents the defendants in the suit. The suit was instituted for realisation of Rs.50 lakhs with interest from four defendants. The case in Ext.P14 plaint is that respondents 2 and 3 approached petitioner and made him believe that first respondent partnership firm is going to start a business and they had entered into a contract with fourth respondent, and purchased 7.5 acres of land and petitioner paid Rs.50 lakhs which is invested and paid by them as consideration for the property of 4th respondent. It is on that basis a decree was sought even against 4th respondent. Ext.P15, an application under Rule 5 of Order XXXVIII of Code of Civil Procedure was filed for an order of attachment before judgment of the immovable property belonging to 4th respondent. Under Ext.P17 order, learned Sub Judge issued notice to the respondents. This petition is filed under Article 227 of W.P.(C) No.26435 of 2008 2 Constitution of India challenging Ext.P17 order contending that learned Sub Judge had gone into the merits of the case, without considering the documents produced and entered a prima facie finding against the petitioner, and, therefore, Ext.P17 order is to be quashed. 2. Learned counsel appearing for the petitioner was heard. 3. As Ext.P17 order was passed before notice to the respondents, and in view of the order to be passed in this petition, it is not necessary to issue notice to the respondents. 4. The suit is instituted for realisation of Rs.50 lakhs. When an application for attachment before judgment, as provided under Rule 5 of Order XXXVIII of Code of Civil Procedure is passed, learned Sub Judge is expected to proceed as provided under Rule 5. Rule 5(1) provides that if the Court is satisfied by affidavit or otherwise, that the defendant, with intent to obstruct or delay the execution of any decree that may be W.P.(C) No.26435 of 2008 3 passed against him is about to dispose of the whole or any part of his property, or, is about to remove the whole or any part of his property from the local limits of the jurisdiction of the Court, the Court may direct the defendant, within a time to be fixed by it, either to furnish securiy, in such sum as may be specified in the order, to produce and place at the disposal of the Court, when required, the said property or the value of the same, or such portion thereof as may be sufficient to satisfy the decree, or to appear and show cause why he should not furnish security. Rule 5(3) enables the Court while issuing a show cause notice, as provided under sub-rule (1), to order conditional attachment. When a petition is filed under Rule 5, the Court has to see whether the conditions provided under sub-rule (1) has been complied with and if so, Court has to issue a notice to show cause why security shall not be furnished. While issuing the said show cause notice, Court is also competent to order a conditional attachment, which shall be in force, if cause is not shown or sufficient security is not furnished. True, it does not mean that an order of conditional attachment is to be granted without W.P.(C) No.26435 of 2008 4 considering the merit of the claim, for a mere asking. 5. The grievance of the petitioner is that instead of proceeding as provided under sub-rule (1) of Rule 5, learned Sub Judge issued notice entering a finding against the petitioner with regard to the question whether second respondent is the Managing Partner of the first respondent firm, and whether petitioner had deposited the amount as claimed. Learned counsel pointed out that petitioner has produced Exts.P3 to P12 cash receipts evidencing payment to the firm in the letter head of first respondent firm, with the Register Number of the partnership firm, as clear from Ext.P1, and in the light of these evidence, Ext.P17 order is illegal. 6. There is force in the submission. Exts.P3 to P12 prima facie establish payment of money as alleged in the plaint. Ext.P1 shows existence of first respondent registered partnership firm with respondents 2 and 3 as its partners. In such circumstances, learned Sub Judge should not have found that petitioner has not established the payment. Ext.P17 order is W.P.(C) No.26435 of 2008 5 therefore quashed. Learned Sub Judge is directed to re-consider I.A.No.4284 of 2008 and pass appropriate orders, in accordance with law, without delay. The writ petition is disposed as above. M.SASIDHARAN NAMBIAR, JUDGE nj.