IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 21ST OCTOBER 2010 / 29TH ASWINA 1932 WP(C).No. 24736 of 2010(O) -------------------------- IA NO.1624/2010 IN OS.172/2010 of SUB COURT, OTTAPPALAM .................... PETITIONER(S): --------------- HAMSA, S/O.MUHAMMED MOLLA, 52 YEARS, VALLIKKATTUTHODI HOUSE, MUNDAKKOTTUKURUSSI AMSOM DESOM, OTTAPALAM TALUK. BY ADV. SMT.T.D.RAJALAKSHMI SRI.R.SREEHARI RESPONDENT(S): --------------- 1. AYOOB, S/O.CHARALIL MUHAMMED KUTTY, CHARALIL HOUSE, VALLAPPUZHA POST, OTTAPALAM TALUK, PIN-679 336. 2. ABBAS, S/O.KONDASSERI UNNEEN, KONDASSERI HOUSE, VALLAPPUZHA AMSOM DESOM, VALLAPUZHA POST, OTTAPALAM TALUK, PIN-679336. ADV. SRI.G.SREEKUMAR (CHELUR) FOR R1 &2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.24736/2010 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 PHOTOCOPY OF PLAINT IN OS 172/2010 OF SUB COURT, OTTAPPALAM EXT.P2 PHOTOCOPY OF AGREEMENT DATED 17.12.2009 EXECUTED BETWEEN THE PETITIONER AND RESPONDENTS EXT.P3 PHOTOCOPY OF ORDER IN IA 1287/2010 IN OS 172/2010 DAED 25.6.2010 OF SUB COURT, OTTAPALAM EXT.P4 PHOTOCOPY OF AFFIDAVIT AND IA NO.1624/2010 IN OS 172/2010 OF SUB COURT OTTAPALAM EXT.P5 PHOTOCOPY OF COUNTER AFFIDAVIT FILED BY THE RESPONDENTS IN IA 1624/2010 IN OS 172/2010 OF SUB COURT, OTTAPALAM EXT.P6 PHOTOCOPY OF ORDER PASSED IN IA 1624/2010 IN OS 172/2010 DATED 8.7.2010 OF SUB COURT, OTTAPALAM EXT.P7 PHOTOCOPY OF INFORMATION RECEIVED FROM VILLAGE OFFICER, VALLAPPUZHA DATED 29.7.2010 //TRUE COPY// THOMAS P. JOSEPH, J. -------------------------------------- W.P.(C) No.24736 of 2010 -------------------------------------- Dated this the 21st day of October, 2010. JUDGMENT This petition is in challenge of Ext.P6, order dated July 8, 2010 on I.A.No.1624 of 2010 in O.S.No.172 of 2010 of the court of learned Sub Judge, Ottappalam to the extent it went against petitioner in that, learned Sub Judge has refused to order attachment of A and B schedule properties referred to in Ext.P4, application. According to the petitioner, he had entered into an agreement with the respondents for purchase of immovable property as per an agreement dated 17.12.2009. According to the petitioner, respondents had entered into another agreement with defendant Nos.3 and 4 for purchase of that property as per an agreement dated 16.12.2009. Pursuant to the agreement with respondent Nos.1 and 2 on 17.12.2009, petitioner paid Rs.11 lakhs by way of advance sale consideration. But respondents failed to comply with their part of contract. Hence petitioner filed the suit for return of the advance money with interest and cost and filed I.A.No.1624 of 2010 to attach A to C schedule properties mentioned in the application and belonging to the respondents. Application was opposed by the respondents. Learned Sub Judge vide the impugned order allowed conditional attachment of plaint C schedule item alone which according to the learned counsel is not sufficient to satisfy the decree that may be passed against respondents. Hence this Writ Petition. Learned counsel contends that going by Ext.P7, letter dated 29.07.2010 issued by the Village WP(C) No.24736/2010 2 Officer, Vallappuzha under the Right to Information Act, fair value of plaint C schedule which is paddy land, fixed under Section 28A of the Kerala Stamp Act is only Rs.6,250/- per Are, extent of plaint C schedule is only 20 cents and that property is not sufficient to realise the decree debt in case decree is passed in favour of petitioner. Petitioner therefore requested that plaint A and B schedule items may also be placed under conditional attachment. Learned counsel for respondents contended that application itself is vague as to the person who allegedly gave information regarding attempt of respondents to sell the property. Learned counsel points out the person who is said to have given information to the petitioner as stated in I.A.No.1624 of 2010 is the same person who is said to have given information and referred to in I.A.No.1287 of 2010 which is an application for attachment of property agreed to be sold to the petitioner and which learned Sub Judge disallowed. It is the contention of the learned counsel that attachment of plaint C schedule is sufficient to satisfy the decree debt. A further argument advanced is that the Writ Petition itself is not maintainable since an appeal is provided under Order XLIII Rule 1(q) of the Code of Civil Procedure (for short, “the Code”). 2. So far as the maintainability of the petition on the ground that the impugned order is appealable is concerned, it is admitted by both sides that there was no conditional order of attachment issued by the learned Sub Judge as provided under Order XXXVIII Rule 5 of the Code and later, it was lifted. It is WP(C) No.24736/2010 3 only when there is a conditional attachment under Rule 5 of Order XXXVIII of the Code and on the respondents showing cause that attachment is lifted under Rule 6 of Order XXXVIII of the Code that an appeal under Order XLIII Rule 1(q) of the Code is provided. Here, the order to the extent it concerned A and B schedules in I.A.No.1624 of 2010 is under Rule 5 of Order XXXVIII which is not appealable under XLIII, Rule 1(q) of the Code. Hence this petition is maintainable. 3. Another objection raised is that there is no definite averment as to who had given information about intention of respondents to sell the property. In the matter of source of information regarding intention to sell the property, the court has to take a realistic approach bearing in mind difficulty of petitioner to get information in the matter, as held by the Division Bench in Pareed Master v. Antony (1987 (2) KLT 649). In I.A.No.1624 of 2010 name of the person who according to the petitioner gave information regarding attempt of respondents to sell the properties is given. 4. Coming to the question whether attachment of A and B schedules in I.A.No.1624 of 2010 is required, it is seen from Ext.P7 that fair value of C schedule item is only Rs.6,250/- per Are while C schedule is only about 20 cents. That is not sufficient to satisfy the decree that may be passed WP(C) No.24736/2010 4 against respondents since according to the petitioner advance sale consideration given to the respondents is Rs.11 lakhs and he is entitled to recover that amount with interest and cost. 5. I stated that attachment of C schedule is not sufficient to satisfy the decree that may be passed in favour of petitioner. B schedule property referred to in I.A.No.1624 of 2010 is 7.5 cents belonging to respondent No.1. Having regard to the facts and circumstances of the case I am satisfied that attachment of that item also is required to satisfy the decree that may be passed in favour of petitioner. Hence, I am inclined to allow I.A.No.1624 of 2010 to the extent it concerned the B schedule item as well. Resultantly this petition is allowed in part in the following lines: i. Ext.P6, order to the extent it refused to order conditional attachment of B schedule item in I.A.No.1624 of 2010 is set aside and that application will stand allowed to the extent it concerned B schedule item also (apart from C schedule item already attached by learned Sub Judge). ii. Respondents are directed to show cause (in the court below) why they shall not offer security for the plaint claim within a period of two months from this day. In case no satisfactory explanation is offered, learned Sub Judge shall make the conditional attachment over the B schedule item absolute. WP(C) No.24736/2010 5 Registry shall communicate to the Sub Registrar concerned, fact of attachment of B schedule item in I.A.No.1624 of 2010. Petitioner shall take necessary steps in that regard. THOMAS P.JOSEPH, Judge. cks