WP(C).No. 7868 of 2010 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 12TH JULY 2010 / 21ST ASHADHA 1932 WP(C).No. 7868 of 2010(O) ------------------------- OS.1222/2009 of II ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER: --------------- MARTIN SEBASTIAN, S/O.SEBASTIAN, AGED 40 YEARS, RESIDING AT SITADAL C. NAGAR, NADATHARA DESOM, THRISSUR. BY ADV. SMT.MAJIDA.S SRI.K.RAJESH KANNAN SRI.AJIKHAN.M RESPONDENTS: --------------- 1. M/S.R.P.HOSPITALITY PVT.LTD., G-3, AISWARYA, T.C.9/414, JAWAHAR NAGAR, KOWDIAR, REPRESENTED BY ITS DIRECTOR. 2. VIJAYAMBIKA, D/O.LATE RAMACHANDRAN @ RAMI PILLAI, FLAT NO.81, VIGNESH PLAZA, DHANYA REMNA THEATRE ROAD, AYURVEDA COLLEGE, THIRUVANANTHAPURAM. 3. ANUPAMA, (MINOR), D/O.VIJAYAMBIKA, REPRESENTED BY HER MOTHER- 2ND RESPONDENT, RESIDING AT FLAT NO.81, VIGNESH PLAZA, DHANYA REMNA THEATRE ROAD, AYURVEDA COLLEGE, THIRUVANANTHAPURAM. 4. AISWARYA, (MINOR), D/O.VIJAYAMBIKA, REPRESENTED BY HER MOTHER- 2ND RESPONDENT, RESIDING AT FLAT NO.81, VIGNESH PLAZA, DHANYA REMNA THEATRE ROAD, AYURVEDA COLLEGE, THIRUVANANTHAPURAM. ADV. SRI.M.R.ANANDAKUTTAN FOR R2 SMT.M.A.ZOHRA FOR R2 SRI.R.S.MADHU FOR R2 SRI.MAHESH ANANDAKUTTAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7868 of 2010 EXHIBITS ------------ PETITIONER'S EXHIBITS ------------------------------ P1:- TRUE COPY OF THE I.A. NO.7908/09 IN O.S. NO.1222/09 P2:- TRUE COPY OF THE ORDER DISMISSING I.A.NO. 7908/09 DT.6.2.10 OF THE IIND ADDL. SUB COURT, THIRUVANANTHAPURAM. P3:- TRUE COPY OF THE SALE AGREEMENT DT. 8.10.07 P4:- TRUE COPY OF THE RECEIPT FOR RS.25,00,000/- ISSUED BY VIJAYAMBIKA P5:- TRUE COPY OF THE ELECTRICITY BILL P6:- TRUE COPY OF THE PAPER PUBLICATION IN O.P. NO. (G&W) NO. 248/09 //TRUE COPY// PA TO JUDGE. THOMAS P. JOSEPH, J. ------------------------------------------- WP(C) No. 7868 of 2010 ------------------------------------------- Dated this the 12th day of July, 2010 J U D G M E N T --------------------- I had disposed of this writ petition on 08.07.2010. But before the order was signed the petition was posted to be spoken today. I heard counsel on both sides again. Disposal of the case on 08.07.2010 appears to be not proper. Hence the order on 08.07.2010 is recalled. 2. Petitioner is the plaintiff in OS No.1222 of 2009 of the Court of learned additional Sub Judge, Thiruvananthapuram. The suit is for realization of Rs. 62,00,000/-(Rupees Sixty two lakhs only) from the respondents based on an agreement for sale allegedly executed by them in favour of petitioner. Since the agreement was not performed petitioner sued for realization of money. Along with the suit Exhibit P1, application was filed under Order XXXVIII Rule 5 of the 2 WP(C) No. 7868 of 2010 Code of Civil Procedure (for short “the Code”) praying for a conditional attachment. Learned Sub Judge issued an order of conditional attachment and directed respondents to show cause why they shall not furnish security for the plaint claim. Respondents preferred their objection. Learned Sub Judge vide Exhibit P2, order dismissed IA No.7908 of 2009 holding that petitioner failed to disclose in the affidavit the source and details of information and the person from whom petitioner learned about intention of respondents to sell the property. Conditional attachment was lifted. Learned counsel for petitioner contends that finding of learned Sub Judge is not correct. Petitioner has stated in the affidavit name of proposed purchaser of property from the respondents and in that circumstance non mention of source of information is not fatal. Learned counsel for respondents raised a preliminary objection in that, since the impugned order is appealable this Court is not required to interfere 3 WP(C) No. 7868 of 2010 with the said order invoking Article 227 of the Constitution. According to the learned counsel the impugned order comes under Order XXXVIII Rule 6(2) of the Code which is appealable under Order XLIII Rule 1 (q) of that Code. 3. Learned counsel for the petitioner has a contention that Order XXXVIII Rule 6(2) of the Code has no application since I.A.No. 7908 of 2009 was dismissed only for the reason of not mentioning source of information regarding proposed sale of property by the respondents and because respondents had shown cause why they shall not furnish security for the plaint claim. I am afraid, argument of learned counsel cannot be sustained. When under order XXXVIII Rule 5 of the Code respondents are called upon to show cause why they shall not furnish security, it is open to them to show that application for attachment itself is not maintainable on whatever grounds available to them including that source 4 WP(C) No. 7868 of 2010 of information regarding proposed sale is not stated. When cause is shown, it is within the power of Court to dismiss the application and vacate conditional order of attachment. In whatever manner it may be respondents, have shown cause against furnishing security, that has been accepted by the learned Sub Judge and the conditional order of attachment has been vacated. The order under challenges falls under order XXXVIII Rule 6 (2) of the Code. From that order an appeal lies under order XLIII Rule 1(q) of the Code. In that circumstance there is no reason why this Court should entertain this writ petition under Article 227 of the Constitution. Petitioner has to resort to the statutory remedy available to him. 4. Learned counsel for the petitioner stated that respondents are making hasty preparations to dispose of the property and if that is done, petitioner will be left without any remedy. Learned counsel requested that 5 WP(C) No. 7868 of 2010 interim order of stay passed by this Court may be kept in force for sometime so that, in the meantime petitioner could challenge the impugned order in appeal. Having regard to the facts and circumstance I am inclined to accept that request. Resultantly this writ petition is closed without prejudice to the right of petitioner to challenge the impugned order as provided under the Code if petitioner is otherwise entitled to that course. I direct that the interim order of stay issued by this Court will remain in force for a period of three weeks from this day. THOMAS P. JOSEPH, JUDGE rkc