IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933 OP(C).No. 3765 of 2011(O) -------------------------------- OS.207/2011 of I ADDL.SUB COURT,TRIVANDRUM .................... PETITIONER --------------- M.E.MUHAMMEDALI, S/O.EBRAHIM RAWTHER, VANCHIMELE HOUSE, MADEN KIVIL LANE, MUTTADA (PO), THIRUVANANTHAPURAM BY ADVS. SRI.RAM MOHAN.G. SRI.G.P.SHINOD SRI.MANU V. RESPONDENT(S): -------------------- MUTHAMMA, W/O.MANIRAJ, MUTHALAKOTTUKONAM NADOORKOLLA, AMARAVILA (PO), THIRUVANANTHAPURAM - 695 522. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 3765/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S.NO.207 OF 2011 FILED BEFORE THE I ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM. P2: COPY OF THE AGREEMENT DATED 19.04.2010 ENTERED INTO BETWEEN THE PETITIONER AND RESPONDENT. P3: COPY OF THE WRITTEN STATEMENT WITH COUNTER CLAIM FILED BY THE RESPONDENT BEFORE THE 1 ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM IN O.S.NO.207 OF 2011. P4: COPY OF THE WRITTEN STATEMENT FILED BY THE PLAINTIFF TO THE COUNTER CLAIM. P5: COPY OF THE FIRST REPORT DATED 21.03.2011 SUBMITTED BY THE ADVOCATE COMMISSION AND THE EXPERT ENGINEER BASED ON THE APPLICATION FILED BY THE PLAINTIFF P6: COPY OF THE SECOND REPORT DATED 26.03.2011 SUBMITTED BY THE ADVOCATE COMMISSION AND THE EXPERT ENGINEER BASED ON THE APPLICATION BY THE DEFENDANT. P7: COPY OF THE ORDER DATED 29.03.2011 IN IA.NO. 1253 OF 2011 IN O.S.NO.207 OF 2011 PASSED BY THE I ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM. P8: COPY OF I.A.NO.2669 OF 2011, THE APPLICATION FOR ATTACHMENT BEFORE JUDGEMENT FILED BY THE DEFENDANT/PLAINTIFF IN THE COUNTER CLAIM. P9: COPY OF THE OBJECTION FILED BY THE PLAINTIFF TO I.A.NO.2669 OF 2011 P10: COPY OF THE ORDER DATED 05.09.2011 IN I.A.NO. 2669 OF 2011 IN O.S.NO.207 OF 2011 PASSED BY THE I ADDITIONAL SUB JUDGE, THIRUVANANTHAPURAM. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3765 of 2011 --------------------------------------- Dated this 21st day of November, 2011 JUDGMENT Plaintiff in O.S.No.207 of 2011 of the Court of learned first Additional Sub Judge, Thiruvananthapuram is the petitioner before me challenging Ext.P10, order directing petitioner to furnish security for the counter claim within ten days from the date of the order (05.09.2011) and further directing that in the meantime, there will be a conditional attachment of the property shown in the attachment schedule. 2. Petitioner sued the respondent for a decree for prohibitory injunction, damages etc while respondent made a counter claim against petitioner for recovery of `.5,00,000/-. The dispute arises from alleged breach of a building contract as per which respondent undertook to construct the first floor of the building belonging to the petitioner and wife and situated in 6.750 cents jointly belonging to them. According to the petitioner, respondent committed breach and petitioner suffered loss. Respondent claimed that he suffered loss to the tune of `.5,00,000/- and made a counter claim. Respondent filed I.A.No.2669 of 2011 for attachment of the property referred to in O.P(C).No.3765 of 2011 -: 2 :- the attachment schedule. Petitioner preferred objection. Learned Additional Sub Judge passed Ext.P10, order on the said application directing petitioner to furnish security and in the meantime placing the property under conditional attachment. 3. It is contended by learned counsel that though the order is passed under order XXXVIII, Rule 5 of the Code of Civil Procedure (for short, "the Code”), no notice was given to the petitioner to show cause why petitioner shall not furnish security. It is also contended by learned counsel that materials on record would show that breach was committed by the respondent and in the circumstances, the application for attachment is only to harass petitioner. Petitioner had, in his counter to I.A.No.2669 of 2011 stated that he has no intention to dispose of the property. 4. Sub rule (1) of Rule 5 of Order XXXVIII of the Code deals with the situation where defendant may be called upon to furnish security for production of property and states 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 passed against him is about to dispose of the whole or any part of his property or, remove the whole or any part of his property from the local limits of the jurisdiction of the Court the O.P(C).No.3765 of 2011 -: 3 :- Court may direct the defendant, within a time to be fixed by it, either to furnish security, or to appear and show cause whey he should not furnish security. Sub rule (3) of Rule 5 says that the Court may also in the order (as above referred) direct conditional attachment of the whole or any portion of the property specified. In the present case, it is not disputed that a copy of I.A.No.2669 of 2011 filed by the respondent for attachment of property was given to the petitioner and he preferred his objection where he stated that he has no intention to transfer the property. Therefore it is not as if notice of the application was not given to the petitioner. It is thereafter that Ext.P10, order was passed whereby petitioner was directed to furnish security and in the meantime a conditional attachment was also issued. 5. The question whether respondent is entitled to get the amount claimed in the counter claim is not a matter required to be decided in this proceeding. Petitioner claims to have stated that he has no intention to sell the property but he did not make any undertaking that he will not sell the property or his share in the property as the case may be. 6. It is contended by learned counsel that though petitioner has only a share in the property attached and the rest O.P(C).No.3765 of 2011 -: 4 :- belongs to his wife who is not a party to the proceeding, learned Munsiff has attached the entire property. If any share in the property belonging to the wife has been attached, certainly she has her remedy provided under law. 7. So far as petitioner is concerned, I do not find reason to interfere with Ext.P10, order at his instance. But, having regard to the circumstances, I am inclined to grant a months' time from this day to furnish security for the claim made in the counter claim. Resultantly this original petition is disposed of granting a months' time from this day to furnish security for the claim made in the counter claim as directed in Ext.P10, order. (THOMAS P. JOSEPH, JUDGE) Sbna/-