IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 12TH FEBRUARY 2009 / 23RD MAGHA 1930 WP(C).No. 4031 of 2009(E) AGAINST THE ORDER IN IA 4230/2008 IN OS.559/2008 of PRL.SUB COURT,KOTTAYAM PETITIONER: --------------- INDIRA GANDHI MEMORIAL CO-OPERATIVE SOCIETY LTD.NO.K-900, MEENADOM.P.O,KOTTAYAM REPRESENTED BY ITS SECRETARY SHINY PHILIP, AGED 32 YRS,D/O.PHILIP, VALIYAPURACKAL, MEENADOM, KOTTAYAM. BY ADV. SRI.M.J.THOMAS RESPONDENT: --------------- ROYS ABRAHAM,MANAGING PARTNER, M/S.ABRAHAM VARGHESE AND CO.,MEENADOM, MALIKKAL HOUSE,MEENADOM.P.O,KOTTAYAM. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C) NO. 4031 OF 2009 E ------------------------------------------------------ Dated this the 12th February, 2009 JUDGMENT The plaintiff in O.S.No.559 of 2008, on the file of the Court of the Subordinate Judge, Kottayam, has filed this Writ Petition for the following reliefs: “i) direct the Principal Sub Court, Kottayam to pass an order on Ext.P5 I.A.No.5191/2008 in O.S.No.559/2008 under Order XXXVIII Rule 6 attaching the attachment schedule property in Ext.P2; ii) direct the Principal Sub Court, Kottayam to pass an order on Ext.P4 and P5 as expeditiously as possible; and iii) grant such other reliefs, as this Hon'ble Court may deem just and proper in the interest of justice, including costs.” 2. The suit was filed for realization of a sum of Rs.3,21,375/- with interest from the respondent. Along with the suit, the petitioner filed I.A.No.4230 of 2008 for attachment before judgment under Order XXXVIII Rule 5 of the Code of Civil Procedure. On 7.10.2008, the court below passed an order directing the respondent to furnish security for the plaint amount or to show cause why security should not be furnished within thirty days. The case was posted to 4.11.2008. It is stated that on 4.11.2008, though the respondent entered appearance, the direction to furnish security was not complied with. The case was adjourned to 26.11.2008. W.P.(C) NO. 4031 OF 2009 E :: 2 :: On 26.11.2008, there was no sitting and the case was adjourned to 19.3.2009. 3. On 12.12.2008, the petitioner filed I.A.Nos.5190 of 2008 and 5191 of 2008 to advance the hearing of the application for attachment before judgment and also for passing an order under Order XXXVIII Rule 6 of the Code of Civil Procedure, the respondent having not complied with the direction to furnish security. Those applications were taken up on 12.12.2008 and the court below posted the applications to 18.12.2008. On 18.12.2008, the applications were posted to 11.3.2009. 4. The petitioner submits that the court below was not justified in adjourning the hearing of the application for attachment before judgment indefinitely. The respondent has not complied with the order passed by the court below to furnish security. No acceptable reasons are also stated as to why the security should not be furnished. According to the petitioner, the failure of the respondent to comply with the order should result in an order under Order XXXVIII Rule 6 of the Code of Civil Procedure. Even after filing the application to take up for hearing the application for attachment before judgment, the court below has simply adjourned the hearing of the application to 11.3.2009. According to the petitioner, since no order was passed in the application for attachment W.P.(C) NO. 4031 OF 2009 E :: 3 :: before judgment, the petitioner is put to great prejudice. Learned counsel appearing for the respondent submitted that the court below did not pass any order in the application for attachment before judgment because the maintainability of the suit itself was challenged by the respondent. Though the respondent submits that a counter affidavit was filed, learned counsel for the petitioner disputes it. The counsel for the respondent pointed out that the petitioner being a Society and the transaction being in the course of business of the society, the suit is barred under Section 100 of the Kerala Co-operative Societies Act. It is contended that the remedy of the plaintiff Society is to take recourse to Section 69 of the Kerala Co- operative Societies Act. 5. I am not expressing any opinion on the contention raised by the respondent that the suit is not maintainable, since such a question is not involved in the Writ Petition. The grievance of the petitioner that the court below has not passed any order in the application for attachment before judgment is genuine. The court below should have advanced the hearing and should have passed an order in accordance with law in the application for attachment before judgment. The respondent would be entitled to contend that the court has no jurisdiction and the court below shall consider that contention while disposing of the application for attachment before judgment. W.P.(C) NO. 4031 OF 2009 E :: 4 :: Accordingly the Writ Petition is allowed. The Principal Sub Court, Kottayam shall take up for hearing I.A.No.4230 of 2008 and pass orders thereon within a period of three weeks from the date of receipt of a copy of the judgment. (K.T.SANKARAN) Judge ahz/