IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 WP(C).No.30562 of 2008 (L) --------------------------------- AGAINST THE ORDER IN I.A2917/2008 IN OS.529/2008 of SUB COURT,KOLLAM .................... PETITIONER: --------------- P.S. SASIDHARAN, KUNNEL VEEDU, MUSHANGADI MURI, KALLELIBHAGAM VILLAGE, KARUNAGAPPALLY. BY ADV. SRI.J.OMPRAKASH RESPONDENT: --------------- R. PRATHAB, SUMA NIVAS, MEENATHUCHERRI, SAKTHIKULANGARA VILLAGE, KOLLAM. ADV. SRI.C.K.PRASAD FOR R1 SRI.ABHILASH S.FRANCIS FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.P.BALACHANDRAN, J. ------------------------------------------------ W. P. C. No.30562 of 2008 ------------------------------------------------ Dated this the 12th day of January, 2009 JUDGMENT This Writ Petition is filed by the plaintiff in O.S.529/08 on the file of the Sub Court, Kollam assailing Ext.P5 order passed by the court below dismissing Ext.P2 application filed by him under Order 38 Rule 5 C.P.C for attaching immovable properties belonging to the defendant and scheduled therewith before judgment. Respondent/defendant is served and he has entered appearance. Heard counsel on both sides. 2. The suit O.S.529/08 is for a decree for realisation of an amount of Rs.22,87,533/- from the respondent/defendant on the strength of a dishonoured cheque. Ext.P2 attachment petition for attachment before judgment of the scheduled properties was also filed by the W. P. C. No.30562 of 2008 -2- petitioner along with filing of the suit. The petitioner has also averred in the affidavit filed along with Ext.P2 application that he has come to know that the respondent/defendant is attempting to dispose of the scheduled properties belonging to him and to leave the territorial jurisdiction of the court with the sale proceeds with a view to avoid realisation of the amounts from him and that the attempt of the respondent/defendant to dispose of his properties has come to his knowledge pursuant to enquiries made consequent on Parthan Pillai, S/o Narayana Pillai of Vazhayil Veedu, Kureeppuzha Cheri, Sakthikulangara village informing him on 27/07/08 of the attempt of the defendant to dispose of the properties. In Ext.P3 counter filed by the respondent/ defendant, the allegation is not at all denied apart from raising certain contentions W. P. C. No.30562 of 2008 -3- disputing his liability to the plaintiff. The court below has vide Ext.P5 order made observations that the affidavit of the person who gave the petitioner information regarding the attempt of the respondent to dispose of the properties is not filed; that there must be positive and definite material that the respondent is about to dispose of the whole or any part of his property and that such disposal is with the intention of obstructing or delaying the execution of the decree that may be passed against him and that in the absence of any material to establish those aspects the disposal of the property by the respondent may not be objectionable and that the intention of the respondent is to be judged from his deed and not from his mental awareness of certain facts and that there is nothing in the instant case to show that the W. P. C. No.30562 of 2008 -4- respondent is attempting to dispose of the property so as to obstruct and delay the execution of the decree that may be passed against him in the case. The court below has then concluded that the petitioner has failed to show that there was any intention on the part of the respondent to dispose of his property. 3. I am of the view that the court below has not at all appreciated the scope and purport of provisions in Order 38 Rule 5 of the C.P.C enabling attachment before judgment. In the instant case what is sought to be attached is only immovable property and not movable property. It can only be on hearsay from a person that the petitioner can come to understand that attempts are being made by the respondent/defendant to dispose of his property. When on receipt of such information, W. P. C. No.30562 of 2008 -5- the petitioner made subsequent enquiries and has got convinced that the respondent has attempted to dispose of the property, it is too much to ask him to furnish evidence on that aspect. Evidence of that intention is only manifestation by execution of sale deed. Further the observation of the court below that the petitioner who seeks attachment before judgment has to further prove that disposal of the property attempted by the respondent/defendant is with the intention of obstructing and delaying execution of the decree that may be passed against him cannot be accepted as the intention of a person can be understood only from the conduct and context and the circumstances under which he conducts himself in a particular fashion. When a debtor has attempted to dispose of all his immovable properties in his place of ordinary W. P. C. No.30562 of 2008 -6- residence there is nothing wrong in a reasonable inference being drawn that his attempt is to dispose of all his assets and leave the place. When such a person is indebted the natural presumption that can be drawn if the sale is not with a view to discharge the debt that he is doing so with a view to obstruct or delay the execution of the decree that may be passed against him. In the instant case, a dishonoured cheque issued by the respondent is the basis for the suit and that is for an amount of Rs.22 lakhs. The question as to whether the cheque is one duly executed and given by the defendant to the petitioner and whether it is for proper and sufficient consideration etc. are all matters to be decided in the suit. At least the fact remains that the cheque is one drawn on an account maintained by the respondent/ W. P. C. No.30562 of 2008 -7- defendant. In the counter filed by the respondent, he has no case that he has no intention to dispose of the properties sought to be attached and does not deny also the specific allegations made by the petitioner that he is trying to dispose of the properties and leave the jurisdiction of the court below to avoid execution of the decree that may be passed against him. 4. In the above circumstances, the court below was not at all justified in passing the impugned order refusing to grant order of attachment in relation to the scheduled immovable properties of the respondent. 5. In the result, setting aside Ext.P5 order, I direct the court below to cause the properties scheduled to the attachment petition filed under Order 38 Rule 5 of the C.P.C being attached with immediate effect. W. P. C. No.30562 of 2008 -8- The petitioner is directed to produce a copy of this judgment in the court below forthwith to enable the court below to act abiding by the directions given above. 6. Issue copy of this judgment to the counsel for the petitioner urgently. K.P.BALACHANDRAN, JUDGE kns/-