IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 5TH OCTOBER 2009 / 13TH ASWINA 1931 FAO.No. 223 of 2009 ------------------------- ----------- AGAINST THE ORDER DATED 31/07/2009 IN IA.1303/09 IN OS.183/2009 of SUB COURT, OTTAPPALAM .................... APPELLANT/RESPONDENT/DEFENDANT --------------------------------------------------------- GEORGE SEBASTIAN, AGED 47 YEARS, S/O.SEBASTIAN, RESIDING AT 34/CHOICE VILLAGE, THRIPOONITHURA. BY ADV. SRI.BABU PAUL RESPONDENT(S): PETITIONERS/PLAINTIFFS --------------------------------------------------------------- 1. B.A.RAHMAN, AGED 50 YEARS, S/O.BAPPU SAHIB, RESIDING AT NO.32, VENKITESWARA GARDEN, NEAR MERCY COLLEGE, PALLIPPURAM P.O., PALAKKAD. 2. M.A.AZEEZ, AGED 48 YEARS, S/O.ASSANAR, RESIDING AT MUTTIKULANGARA MAHAL, PUTHUPARIYARAM AMSOM DESOM, PALAKKAD. ADV. SRI.K.ABDUL JAWAD FOR R1 & 2 SRI.U.MUHAMMED MUSTHAFA FOR R1 & 2 THIS FIRST APPEAL FROM ORDERS HAVING BEEN FINALLY HEARD ON 05/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. M. JOSEPH & M. L. JOSEPH FRANCIS, JJ. -------------------------------------------------- F.A.O. NO. 223 OF 2009 --------------------------------------------------- Dated this the 5th October, 2009 JUDGMENT K.M. Joseph, J. This Appeal is directed against the order passed in I.A.No.1303/09 in O.S.No.183/09 on the file of the Sub Court, Ottappalam, which is an Application filed under Order 38 Rule 5 of the Code of Civil Procedure for attaching before Judgment. The Application stands allowed. 2. We heard the learned counsel for the appellant and also the learned counsel appearing on behalf of the respondents. 3. Learned counsel for the appellant would submit that this is a case where the court below ought not to have ordered attachment of the property, according to the appellant, worth a few Crores as the Suit is filed seeking a Decree for a sum of Rs.12 Lakhs. According to the appellant, the appellant is prepared to furnish Bank Guarantee for the amount and he will FAO.NO.223/09 2 be put to irreparable injury, if the impugned order is sustained. Learned counsel for the appellant points out that if Bank Guarantee is ordered, the interest component may be reckoned. 4. We take note of the fact that the Suit itself is of the year 2009 and having regard to all circumstances, we modify the order and vacate the order of attachment on condition that the appellant will furnish Bank Guarantee in a sum of Rs.15,00,000/= (Rupees Fifteen Lakhs) within three weeks from today. If the appellant fails to furnish Bank Guarantee as aforesaid, the Appeal will stand dismissed. Sd/= K.M. JOSEPH, JUDGE Sd/= M. L. JOSEPH FRANCIS, JUDGE kbk. // True Copy // PS to Judge