IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 OP(C).No. 3830 of 2011(O) -------------------------------- OS.196/2011 of SUB COURT,NEYYATTINKARA .................... PETITIONER: ----------------- B. SURENDRA DAS, S/O. LATE BHANU PANICKER, T.C 48/1056, SREEVISHAKH, AMBALATHARA, MUTTATHARA, POONTHURA.P.O, THIRUVANANTHAPURAM. BY ADVS. SRI.K.B.PRADEEP SMT.N.G.SINDHU RESPONDENT(S): -------------------- B. VINOD, S/O. BALAKRISHNAN, MELPURAM THARISHU PUTHEN VEEDU, PARASUVAIKKAL.P.O, NEYYATINKARA - 695 034. THIS OP (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs O.P.(C). NO. 3830/2011 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE PLAINT IN O.S. NO. 196/2011 ON THE FILE OF THE SUB COURT, NEYYATINKARA DATED 26/05/2011. P2: COPY OF THE IN I.A. NO. 1165/2011 IN O.S. NO.196/2011 ON THE FILE OF THE SUB COURT, NEYYATINKARA DATED 28/06/2011. P3: COPY OF THE IN I.A. NO. 883/2011 IN O.S. NO.196/2011 ON THE FILE OF THE SUB COURT, NEYYATINKARA DATED 26/06/2011. P4: COPY OF THE COUNTER AFFIDAVIT DATED 12/08/2011. P5: COPY O THE ORDER PASSED IN EXHIBIT P2 APPLICATION DATED 15/10/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/ P.A. TO JUDGE. svs THOMAS P. JOSEPH, J. ---------------------------------------- O.P(C).No.3830 of 2011 --------------------------------------- Dated this 24th day of November, 2011 JUDGMENT Ext.P5, order passed by the learned Sub Judge, Neyyattinkara on 15.10.2011 on I.A.No.1165 of 2011 in O.S.No.196 of 2011 is under challenge. That is a suit filed against the respondent for recovery of `.15,00,000/- with interest. Certain immovable properties were sought to be attached under Order XXXVIII, Rule 5 of the Code of Civil Procedure (for short, "the Code”) but, going by Ext.P5, order, that application was dismissed as the properties were under acquisition (or negotiated purchase as learned counsel would submit). Thereafter respondent filed Ext.P2, application to attach the sum of `.18,00,000/- being the 1/4th of the total amount due to the petitioner in L.A.C.No.496 of 2010C and to direct the officer concerned to produce cheque before Court. On that application, by Ext.P5, order learned Sub Judge directed petitioner to furnish security for `.18,00,000/- within one month from the date of the order (15.10.2011) and further directed that in the meantime, there will be a conditional attachment over the said amount. O.P(C).No.3830 of 2011 -: 2 :- 2. Learned counsel contends that it was not justifiable or legal for the learned Sub Judge to direct conditional attachment while directing petitioner to furnish security for the amount. It is also contended by the learned counsel that the fact that earlier application for attachment was dismissed was not taken into account by the learned Sub Judge. 3. Having gone through Order XXXVIII, Rule 5 of the Code (though in Ext.P2, application the provision quoted is Rule 52 of Order XXI of the Code), I am unable to accept the contention as the said provision enables the Court to direct petitioner to furnish security for the plaint claim and sub rule (3) provides that Court may also in the order (directing petitioner to furnish security) direct conditional attachment of the whole or any portion of the property so specified. 4. According to the learned counsel, the property attached is not specified in Ext.P2, application which does not even contained a schedule. The defect if any, is in the form. Other details sufficient for attachment are contained in Ext.P2, application. 5. The last argument which learned counsel advanced is that petitioner is prepared to furnish security to the satisfaction O.P(C).No.3830 of 2011 -: 3 :- of learned Sub Judge in which case the attachment is to be lifted as provided under Rule 9 of Order XXXVIII of the Code. That is a matter which learned Sub Judge has to decide. If petitioner furnishes security to the satisfaction of the learned Sub Judge, certainly learned Sub Judge has to act in accordance with law if there is a request to lift the attachment. Resultantly this original petition is disposed of directing that in case petitioner furnishes sufficient security to the satisfaction of the learned Sub Judge as directed in Ext.P5, order and if any application for lifting the attachment is made, learned Sub Judge shall dispose of that application as provided under law after hearing both parties. (THOMAS P. JOSEPH, JUDGE) Sbna/-