IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOMAS P.JOSEPH FRIDAY, THE 2ND JULY 2010 / 11TH ASHADHA 1932 WP(C).NO. 20502 OF 2010(O) ------------------------------------------ OS.83/2008 OF SUB COURT,NEYYATTINKARA .................... PETITIONER(S): ---------------------- ASOK KUMAR, SON OF DAMODARAN PILLAI, AGED 45 YEARS, SOPANAM, MELARIYODE ROAD, VANDANNOOR, MARANALLOOR VILLAGE, NEYYATTINKARA TALUK. BY ADV. SRI.V.SURESH SRI.G.SUDHEER RESPONDENT(S): --------------------------- JOSE PHILIP, SUB-INSPECTOR OF POLICE, CHERIYIL VEEDU, KANNANNOOR, AMBOORI VILLAGE, NEYYATTINKARA TALUK. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: THOMAS P.JOSEPH, J. ==================================== W.P(C) No.20502 of 2010 ==================================== Dated this the 02nd day of July, 2010 J U D G M E N T It is the case of petitioner-plaintiff that plaint A schedule belonged to him and he was engaged in removing soil from that property in a mini Lorry hired for the purpose. On 20.08.2007 respondent, the local Sub Inspector and a few other policemen took that vehicle into unauthorised custody as if that vehicle was used for illicit transportation of soil and following that respondent registered a case against petitioner under the Mines and Minerals (Development and Regulation) Act (for short, “the Act”). Petitioner contended that the said act of respondent is mala fide with the sole object of harassing him. It is also his case that for the purpose of registering a case and thereafter respondent has concocted records. According to the petitioner acts of respondent supported by his subordinates caused loss to him to the tune of Rs.1,36,000/- and hence for recovery of that amount he filed O.S. No.83 of 2008 in the court of learned Sub Judge, Neyyattinkara. He also filed Ext.P2, application for attachment of the share of respondent in his family property. There was a conditional order of attachment on C.W.P(C) No.20502 of 2010 -: 2 :- that application. Respondent preferred Ext.P3, objection and Ext.P4, application to lift the attachment. That application was dismissed vide Ext.P5, order. Respondent challenged that order in this Court in W.P(C) No.18569 of 2009 and raised several contentions including maintainability of the suit itself against him since according to him he is protected by Sec.22 of the Act and also provisions of the Kerala Police Act in so far as he has seized the vehicle and registered case against petitioner in the discharge of his official duty. This Court as per Ext.P6, judgment directed trial court to consider the objection preferred by respondent to the application for attachment. Learned Sub Judge heard the matter again and dismissed the application for attachment. Petitioner challenged that order in C.M.A. No.68 of 2009 and in the course of appeal filed I.A. No.1346 of 2010 to receive additional documents. Learned District Judge, Thiruvananthapuram after hearing parties dismissed the appeal vide Ext.P11, judgment on 24.05.2010. That judgment is under challenge in this Writ Petition. Learned counsel for petitioner contended that dismissal of I.A.No.644 of 2008 is not on the grounds pleaded by the respondent and at any rate the undertaking made by respondent that he will not alienate his share in the family property was not C.W.P(C) No.20502 of 2010 -: 3 :- recorded and accepted by the courts below which at least would have ensured that petitioner could realise the amount in case a decree is passed in his favour. Learned counsel requested to interfere with Ext.P11, Judgment. 2. At this stage I am not going into the issue regarding maintainability of the suit. That is a matter to be decided by the trial court at the appropriate stage. Now the question is whether attachment of share of respondent in his family property is necessary on the facts and circumstances of the case. Attachment before judgment even if it is of immovable property is a harsh step and court must be circumspect and cautious in ordering attachment. It is only when it is shown that the respondent with the object of defeating or delaying the decree that may be passed against him is attempting to dispose of or remove his property from the local limits of jurisdiction of the court concerned that court is required to order a conditional attachment and direct him to furnish security. Attachment before judgment is not a mode of execution but only a step in aid of execution of the decree that may be passed. It is not disputed that respondent who is now shown to be 34 years old is working as the Sub Inspector of Police. Learned Sub Judge has observed C.W.P(C) No.20502 of 2010 -: 4 :- that it is not as if a decree is obtained against respondent it cannot be successfully executed against him as it is open to the petitioner to seek attachment of salary of respondent. Apart from that, it is also open to the petitioner to seek personal execution against respondent on proving that he has means to pay the amount but in spite of that he has neglected or refused to pay the same. As such it is not as if in the absence of attachment of share of respondent in the family property the decree which may be passed in the case would become futile. Having regard to the circumstances stated I am not inclined to adopt the harsh step of attaching the share of respondent in the family property. As such I do not find reason to interfere with the impugned judgment. But I direct learned Sub Judge to dispose of the suit untrammelled by any observations contained in the order on I.A. No.644 of 2008 or in Ext.P11, Judgment as to the maintainability of the suit. Writ Petition is disposed of with the above direction. THOMAS P. JOSEPH, JUDGE. vsv