IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH TUESDAY, THE 4TH NOVEMBER 2008 / 13TH KARTHIKA 1930 CRP.No. 700 of 2008(C) ---------------------- AGAINST THE ORDER DATED 11/07/2008 IN IA 472/2008 IN OS.88/2008 of SUB COURT,KATTAPPANA .................... REVISION PETITIONER(S)/PETITIONER IN IA 472/08IN OS 88./2008 PLAINTIFF: --------------------- T.T.THOMAS, AGED 45, S/O.THOMAS, THAZHATHUTHUNDIYIL HOUSE KATTAPPANA. BY ADV. SRI.S.SACHITHANANDA PAI RESPONDENT(S)/RESPONDENT IN IA NO.472/2008 IN OS 88/2008 DEFENDANT: --------------- BIJU SEBASTIAN, AGED 32, S/O.SEBASTIAN, THEKKAKUTTU HOUSE, SANTHIGRAM, KATTAPPANA. ADV. SRI.VARGHESE C.KURIAKOSE FOR CAVEATOR THIS CIVIL REVISION PETITION HAVING COME UP FOR ADMISSION ON 04/11/2008, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: THOMAS P. JOSEPH, J. -------------------------------------- C.R.P. No.700 of 2008 -------------------------------------- Dated this the 4th day of November, 2008. ORDER Heard counsel on both sides. 2. Petitioner filed O.S.No.88 of 2008 in the Sub Court, Kattappana for realisation of money due from the respondent. According to the petitioner, he had paid Rs.2.5 lakhs as advance for the purchase of bus bearing registration No.KL 17 E.3173, the sale of which was to be effected on or before 30.9.2007 and the balance amount was to be paid on execution of the sale deed. Petitioner sued the respondent for realisation of the advance paid. Petitioner filed I.A.No.472 of 2008 for attachment of the said vehicle under Order XXXVIII Rule 5 of the Code of Civil Procedure (for short, 'the Code'). That application was opposed by the respondent. He however undertook not to alienate the vehicle during the pendency of the suit. Learned Sub Judge as per order dated 11.7.2008 observed that the undertaking made by the respondent in the counter affidavit is sufficient to ally the apprehension of the petitioner regarding the respondent disposing the vehicle. Accordingly, the undertaking was made absolute till the disposal of the suit. Dissatisfied, petitioner has initiated this proceeding. CRP No.700/2008 2 3. It is contended by learned counsel for petitioner that respondent has other liabilities also and hence, respondent may transfer the vehicle. Counsel for the respondent reiterated the unconditional undertaking already made in the court below. 4. It is seen from paragraph 4 of the additional affidavit dated 26.6.2008 filed by the respondent in the court below that apart from expressing his intention not to transfer the vehicle, he has also undertaken that he will not alienate, part with or even remove the vehicle from the jurisdiction of the court until the disposal of the suit or without furnishing security. That undertaking according to the court below, was sufficient to allay the apprehension of the petitioner. 5. In Cherukutty v. Subrama Sastrigal & 5 others (1987 KLJ 1144), a Division Bench of this Court considered the effect of an undertaking in an application for attachment under Order XXXVIII Rule 5 of the Code. Trial court observed that the undertaking is sufficient and that if the undertaking is violated, Section 64 of the Code will apply. Division Bench agreed with that finding. 6. Apart from the above, counsel for the respondent submitted that the respondent is prepared to execute a bond in the trial court undertaking that he will not alienate the vehicle in question or otherwise encumber it (other than the existing liability) until the disposal of the suit. That is sufficient to secure CRP No.700/2008 3 the interest of the petitioner. Respondent shall execute a bond for the amount claimed in the plaint undertaking not to alienate or encumber the vehicle (other than the existing liability) until the disposal of the suit, in the trial court within three weeks from this day. 7. Counsel for petitioner requested that the court below be directed to dispose of the suit at the earliest. It is open to the petitioner to make a request in that line before the learned Sub Judge. With the above observation, this Civil Revision Petition is closed. THOMAS P.JOSEPH, JUDGE. cks